Wills Vs Deeds: Which Controls?

Wills Vs Deeds: Which Controls?

When a person owns real estate they often want to make decisions about who will take ownership of said property upon their passing. A person will often reference their property in their Will and provide instructions as to who should be receiving the ownership of the real estate upon their passing. But is a Will all you need to transfer ownership and how does the Will play into the transfer of title?

What determines the current ownership of a property is who is currently vested with title in said property. This is reflected in the chain of title maintained by the local county government where the property is located. The latest deed in that chain of title is what the county uses to determine who is the owner of the property. If the last known owner is a deceased person and no one else is on the title of the property, then the property is owned by the deceased person’s estate until it is transferred to someone.

Whether a will prescribes the property to someone or not is not enough to complete the transfer of ownership. A deed must be issued and title must be given. The most common way this is done is that whoever is elected as the executor of the estate would take over management of the estate property and distribute it either based on the provisions outlined in a will or the laws of intestate succession. This is most often done by a quit claim deed where the executor, as representative of the estate, deeds the property to the person selected in the will to take ownership, or if there is no will, whoever intestate laws say should receive the estate’s property.

If the will specifically states who the property should go to, the executor is duty bound to follow those instructions. But what happens if they don’t do this? What happens if the executor goes rogue and transfers title to someone not listed in the will. Is that transfer void?

The answer to this is a complicated one. Unfortunately, depending on who the property is deeded to, it may be lost to that person. The estate would have the ability to sue the rogue executor for damages, and if it can be shown to the Court that the current owner of the property was in on some sort of scheme or colluded with the executor, title may be able to be remedied by court order. However, if the title was deeded to a random third party with no collusion being shown, it is not within the Court’s power to divest this person of their home as they have not committed any fraud or wrongdoing and the damages and remedy the Court can issue would be directed solely at the rogue executor.

This situation illustrates that a will is not all that is needed. The current deed is what the city refers to when determining who is the owner of property. The will is a guideline for the transitioning of ownership, but if it isn’t followed, the Deed is what controls.

When setting up your will and determining who to give real estate to, it is important to speak with an attorney and to select an executor that you know will follow the instructions of your will to the letter. If you are considering transferring your real estate to a loved one or someone else through your will, please consider contacting the Law Office of Andrew Szocka P.C. by calling 815-344-8430 or emailing us at info@szocka.com.  We are a longstanding McHenry County firm with extensive experience in house transfers and probate. We would be happy to speak with you on your plans and help ensure your real estate is deeded properly when the time comes.

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