If home in will is said to be split between 3 children, what happens if home is gifted to the child who is also his caregiver?

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If home in will is said to be split between 3 children, what happens if home is gifted to the child who is also his caregiver?

Will says if one child wants house, the child
who wants home owes one third of the home value
to other two children. Father has already
gifted and changed ownership at court house to
child before he passes away. What should be
done???

Asked on June 29, 2019 under Estate Planning, Virginia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

A Will can only convey that which the testator (i.e. the person who made the Will) owns at the time of thier death. Further, property can transferred prior to their death, even if it is listed in their Will. Accordingly, the gidt stands. That is unless it can be proved that the recipient of the gift used some form of undue influence, fraud or the like regarding the person who made the gift. 

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Nothing can be done. A will has no power or effect until the testator (person making the will) passes away. It does NOT control or limit what he can do with his property prior to dying. A will needs to really be read as saying, "IF I still own my house when I die, then...." If he didn't own the house--whether it was gifted, sold, foreclosed, etc.--then the part of the will discussing the house has no effect.


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