Can a Will override a deed?

UPDATED: Oct 1, 2022

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Can a Will override a deed?

My parents Will’s provides that upon death, their property is to be deeded to their 2 daughters, my sister and I. It was already filed with the county assessor and. However, one parent is still alive but now wants to give property to a nephew. Can she do that? Does what is already filed take precedence if one of the daughters goes to court on this matter?

Asked on March 5, 2018 under Estate Planning, New Mexico


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

Answered 4 years ago | Contributor

Typically, a deed or other transfer can "override" the terms of a Will. However, here what parents seem to have is a "joint Will". If that is the case, the way it is suppossed to work is that when one spouse dies, the survivor inherits everything and when the second spouse dies, all goes to their children. Most joint Wills also contain a provision that the surviving spouse cannot change or revoke the Will. So while an individual Will is always revocable, a joint Will is really a binding legal contract which cannot be revoked or changed after the death of the first spouse. At this point, you really should consult with a local probate attorney who can best advise you further after reviewing all of the facts of your situation.

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