Does a Will override the deed to a home or vice versa?

The home is in an elderly parent name only now. The Will indicates that the house is to be sold 30 days after death. The eldest adult child is the executor of the Will. The youngest adult child lives in the home currently. The parent wants to add the names of both children on the house. How would this work if the Will and the deed do not match?

Asked on August 22, 2018 under Estate Planning, Georgia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

A will does NOT override a deed: wills have no power or effect until the person making them (the "testator") dies and do not prevent that person from transferring, gifting, selling, etc. the property before death. The will has to deal with the situation as it exists at death, and if property in the will is no longer owned the way it was or by whom it was owned when the will was made, the will is unable to transfer it.
So what will happen depends on how the children are added to the deed:
1) If they are added as joint tenants with right of survivorship, then when the first owner dies (presumably the parent), the surviving owners automatically get that person's share of or interest in the home--at the moment of death, the two remaining owners (if there were three originally) each become half owners. Then when the next of them dies, the sole survivor becomes the 100% owner. The house never goes through probate and is not affected by wills.
2) If they are added as tenants-in-common, then when the parent dies, the children each keep their shares, but the parent's 1/3 share will go to whomever it is will to.

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