but what if the real estate was in the will/probate..?
A Will ONLY applies to assets that are part of the probate estate. If I leave a Will saying, "I leave my house to my son and do not wish my no-good horrible daughter to get anything," but the house is jointly owned with the daughter, then the daughter gets the house. The Will would not apply.
Mr. Frederick's example shows exactly why you need to speak to an attorney who can review the documents and who understands all of the facts.
What if it says my house to be included in my estate on the probate documents?
Title still trumps the Will. It is not HIS house, under your scenario. He can only leave the assets that are his (alone) to leave. Having said that, if you can PROVE that there was a "mistake" and that the deceased did not understand the effect of the documents...you might have a toe inside the doorway.
21112. A condition in a transfer of a present or future interest
that refers to a person's death "with" or "without" issue, or to a
person's "having" or "leaving" issue or no issue, or a condition
based on words of similar import, is construed to refer to that
person's being dead at the time the transfer takes effect in
enjoyment and to that person either having or not having, as the case
may be, issue who are alive at the time of enjoyment.
WHAT DOES THIS MEAN?
I am not quite sure, since it is taken out of context. It appears to be a definition of something. What the effect of such a clause is is the key point. What is the effect of including such a condition?
It means what I mentioned in your other post. When the bequest is to "my then living children" or "the then living children of John Smith," then assuming the bequest is to take effect on the testator/trustor's death, then it is to the testator/trustor's children who are living when the testator/trustor dies (or John Smith's children living on that date). If it is the residue of a trust that was set up for a beneficiary, then it is those individuals living when the trust terminates.
Please see an attorney to have the document reviewed to provide you with advice that is specific to your facts.