Does a Will override a Deed?

Question

Before I get into this entire spill, the obvious in all of this is, “there should’ve been a title search done prior to the purchase”.

The deceased left his wife as executrix of his estate. She recently sold me some property and I signed a quitclaim deed. I have “owned” the property for the past 3 years and recently after much work to the property, I recently went to the bank to get do a cash out equity. This is when the attorney located a will that shows the wife as executrix.

However, in a section on the will it says, “All of the rest, residue, and remainder of the estate of every kind and nature is left to herself and 4 children.” She did ask them (and I have proof) if they wanted anything to do with the property and they declined.

Can she legally sell me the property as the executrix, even with the above mentioned? She did make all parties aware in this matter.  I’m trying to secure the title etc.

And again, I know this is a tangled web and the correct steps that should’ve been taken to avoid all of the above. Thank you all for your comments and help.

Douglas Snook · Answer

It may depend on the state and what the deeds said and what went on in probate.

Deed first. If he owned it joint with his wife, then upon death it goes to her and she could sell it to you. Should not matter what the will says. If it was in the deceased name only, then the will controls. It goes through probate. As executrix she has to do what the will says. So it looks like it is left to her and the kids. She can sell you her interest no problem. If they kids don't want it then there is a choice. They can "disclaim" their inheritance or simply agree to the sale of the real estate and take the cash instead. This election should be filed in the probate case. Sometimes the probate court requires a "license to sell" the real estate as well (again, very state specific)

You need to find a real estate attorney as you need to clear your title. This may involve going back to the wife and kids and getting them to sign off on whats already done or it might mean going to court to "quiet title" to prove you own it. You will want to do this so you can refinance or sell as it will keep coming up and you want to do this all now while it is fresh in everyone's minds etc.

That's just a general overview.

Caroline Gerardo · Answer

I would be happy to help you with my Title Officer in Mississippi no charge, you have to get the family to sign. Then use the same title company when you refinance so they get paid.  Call me/ email me the address so they can pull the records. Wondering if he was married when he bought the property. Start a google search on all the children as to where they are located.

Tom Gimer · Answer

If the wife became the sole owner as surviving joint tenant by operation of law, her signing the deed in the capacity of Executor may have made that transfer defective. That can be corrected easily via confirmatory deed.

If instead the wife was the executor of the estate to which this parcel actually passed, she should have obtained in writing a disclaimer from each heir who declined to accept the bequest. Doing so would make the original deed valid. If those disclaimers were never obtained you’ll likely need fresh ink from all of the heirs to fix this. Good luck.

Caroline Gerardo · Answer

You needed five signatures when you "purchased." You need them now. You don't state how the vesting was when you transferred- get a title report now with history back before you purchased and see how it was transferred to him.    Not meaning to hurt your feelings but buying without title insurance was a big mistake. Feel free to call me. You need a strategy as to how you will contact everyone, do it ASAP while wife is alive. Do you have any written emails/letters with her? The children may ask for money. You need a notary to go to each of them to their location and have the deeds already typed, then the notary brings them back to you to be recorded. Notary may charge $200 per as it takes time. Don't expect them to go to a notary for you, they won't get around to signing. You need all five wet signatures now. go look up county records to see if a probate was ever filed. Do the research for an attorney so they don't charge a fortune. Mississippi is not a community property state.

Peter Walther · Answer

I suggest you go to a title agent and ask them to issue you an owner's policy.  To do that they'll search the title and produce a commitment telling you what they require to issue a policy w/o an exception for other possible interests.  That way you won't spend time and money doing things that may not be necessary or sufficient to address the insurers requirement.

Peter Walther · Answer

I don't disagree.  I was just positing that if she owned the property individually and the deed was signed just in her capacity as Executrix, it could be argued she did not convey title and the Grantee received nothing.  I believe that would be a difficult for her to argue but I suspect if she filed BK the Trustee would look at the conveyance and claimed she and therefore her BK estate still holds title free and clear of any interest of the alleged Grantee.  At best the Grantee might be an unsecured creditor of the BK estate and could get in line with all the other unsecured creditors.  Been there done that, got the tee shirt.

Wayne Brooks · Answer

@Douglas Snook @DeAnna CastonJust because the husband and wife owned the property jointly does not mean the wife gets full title upon the husband’s death.  That is true Only if the husband and wife vested the title with “rights of survivorship”....if not, the will dictates, and in this case it appears his interests goes to the wife And the children.

I just went through this with properties in MS and Al....which didn’t have rights of survivorship.   A probate may be necessary or affidavits of heirship may suffice, even though the death of one the children may complicate it a bit.

As suggested, have a title company do a search and issue a commitment which will tell you what is required.  If affidavits of heirship will suffice, the title company will provide the appropriate forms.  We had to do affidavits of heirship, MS does allow the Affiants to be family related, but not potential heirs.

Gregory Miller · Answer

@Peter Walther

It depends...A will is used to transfer property that hasnt been otherwise disposed of prior to death.   So I would say if the deed was executed and filed it would take priority over a will.   If the deed was only partially completed however,  I think you're answer depends on the law in your specific state.

Any lawyers want to correct this please feel free!!

DeAnna Caston · Answer

@Susan Maneck yes the taxes have been paid (I paid them when I purchased the property). I didn’t find out about the additional individuals until the Will arose.

Does a Will override a Deed?

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