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Does a last will and testament override a deed?

Logan, WV |

My grandparents died leaving a deed that states real estate property is to be passed down to children and grandchildren. they had five children. four children have passed away, leaving last will and testament stating said property is to be passed to neice and not children.the fifth child is still living on property and also has a will stating his children are not to be mentioned on deed. Does the wills override the original deed?

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Attorney answers 1


On its surface, this looks exactly like the type of issue that would be put onto a law school exam.

The issues that need to be deal with the deed is whether or not it effectuated a transfer of the property to the children and grandchildren. If it is a valid deed, title would have passed at whatever point in which it did become valid. Otherwise, it is essentially an attempt at being a will without submitting to the formalities of the statute.

Therefore, you need to speak with a real estate attorney in West Virginia that is knowledgeable about deeds and the recording statute to know whether or not that deed was proper. It is not an issue of the will "overriding" the deed (or vice versa), it is an issue of whether or not the deed transferred title.

If the answer is yes, then the will is moot in the sense that there was no property for your grandparents to give away in the will.

If the answer is no (meaning the deed was not proper), then you need to probate the will and the property will transfer according to that.

Now, there seems to be some additional title issues as well as probate issues. For example, you raise an issue of "pretermitted children" (also known as writing children out of a will). Also, you mention that four of the potential title holders themselves passed away. If there was a valid transfer from the deed, then their heirs need to be involved as well.

The long and short is that you need to find a skilled attorney for both the real estate and probate issues.

Good luck.

I am licensed in Massachusetts. Any advice I provide is for informational purposes only and in no way constitutes an attorney/client relationship. If you are in need of legal counsel, you should contact a local attorney.

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