Can a Will be executed if the principal is not dead?

My dad made his Will with a local attorney; he also made my brother power of

attorney. My dad is still alive but lives in a VA hospital; he suffers from mental and physical issues. In his Will he left 2 houses – 1 for my brother and 1

for me. Last winter, my brother decided that because I’m on SSI that I’m not allowed to own a home. He talked my mother who is still of sound body and mind, into signing my house over to him. She did and now he is going to build duplex on my property. Is this legal?

Asked on September 18, 2016 under Estate Planning, Minnesota


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A will has NO power until someone dies, and does not control what happens to the property listed in the will pre-death; that is, the will does not "reach back" retroactively from when someone passes away to control what they previously did with their property. The best way to read any provision or bequest in a will is to add the words "If I still own this property or asset when I die, then it goes to...", because that's what the will does: it sets out what will happen to the property/asset IF--and only if--it is still owned at time of death. If your mother, who was mentally competent, and your brother, who had a POA, decided to sign the house that you might otherwise have gotten over to him (it's *not* your house, since it was never given to you), that is legal, and the provisions of the will relating to that house are irrelevant.

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