What happens if property included in a Will was already transferred before the Will was executed?

UPDATED: Sep 30, 2022

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What happens if property included in a Will was already transferred before the Will was executed?

My mom signed her dairy over to 3 of 6 children only, as she was showing signs of Alzheimer’s. She made a Will 2 months later. She passed away 2 years ago. When the property sells, will it be included her estate since it is now owned by 3 children whose intention is to divide 6 ways?

Asked on February 6, 2017 under Estate Planning, Idaho


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

Answered 6 years ago | Contributor

A Will can only convey that which the testator (i.e. maker of the Will) owned as the time of their death. So, to the extent that property for example, was conveyed prior to the testor's death, then it is not subject to probate since it is no longer a part of the estate. Bottom line, the person to whom the asset was conveyed is the legal owner and can keep it; the beneficaries cannot lay claim to it. 

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