Deed vs. Will: If I Transfer Property Before Death, Does the Deed Trump the Will?

The Short Answer

Yes, a valid deed generally trumps a will. If a property deed is legally transferred to a new owner ("Person A") before the original owner dies, that property is no longer part of the deceased’s estate. Therefore, the Last Will and Testament has no legal authority over it. Even if the will states that Person A must share the proceeds with others upon selling, they are under no legal obligation to do so if they are the sole owner listed on the deed.

The "Have Your Cake and Eat It Too" Dilemma

A common scenario in estate planning involves a parent or property owner trying to avoid probate while retaining control from beyond the grave.

The Scenario: A dying person transfers a real estate deed to "Person A" to ensure the property avoids probate. However, the original owner leaves a provision in their will stating: "When Person A sells the property, they must split the proceeds equally between Person A, Person B, and Person C."

The Conflict: The deed says Person A owns it 100%. The will says Person A must share it. Which legal document wins?

Why the Deed Wins

In almost every case—assuming the deed transfer was valid, the grantor was competent, and there was no duress—Person A owns the property free and clear.

Here is the legal reality:

1. Ownership Transfer: When the deed was signed and delivered, ownership transferred immediately. The property left the original owner’s estate before they died.

2. Probate vs. Non-Probate: A will only controls assets that go through probate. Because the house was already transferred to Person A, it is not a probate asset. The will cannot dictate what happens to property that the deceased no longer owned at the time of death.

The Problem with Using a Will for "Instructions"

Many people mistakenly believe a Last Will and Testament avoids probate. It does not. A will is simply a letter of instruction to the probate court telling the judge who should get your assets after creditors are paid.

If you transfer an asset (like a house or a bank account) to someone else while you are alive, that asset bypasses the will entirely.

The Bank Account Analogy

This concept applies strictly to financial accounts as well.

• Example: A parent puts one child on a bank account as a joint owner or Pay-on-Death (POD) beneficiary for convenience.

• The Will: The parent’s will says, "Split all my bank accounts equally among my three children."

• The Result: The child listed on the account gets 100% of the money. The will is powerless to redistribute it.

The Moral vs. Legal Obligation

In the scenario where Person A owns the house but the will asks them to share:

• Legally: Person A can sell the house and keep 100% of the money. They can also live in it forever or give it to a stranger. It is their property.

• Morally: Person A can choose to honor the deceased’s wishes and gift the money to Person B and Person C.

Warning on Gifting: If Person A decides to be "fair" and share the money, they may inadvertently trigger gift tax issues. Because Person A legally owns the money, giving it to siblings is considered a gift from Person A, not an inheritance from the parent.

Better Solutions: Trusts and Lady Bird Deeds

If your goal is to avoid probate and ensure proceeds are split among multiple beneficiaries, a simple deed transfer is the wrong tool.

1. The Living Trust

If you want to place conditions on an inheritance (e.g., "Sell the house and split the money three ways"), you need a Trust. A Trust allows you to dictate exactly how and when assets are distributed, preventing the "sole owner" problem.

2. The Lady Bird Deed (Florida)

For Florida residents, a Lady Bird Deed (Enhanced Life Estate Deed) is often a superior option.

• How it works: You keep the property in your name while you are alive (retaining the right to sell or mortgage it).

• Upon Death: The property transfers automatically to your named beneficiaries—avoiding probate.

• Benefit: You can name A, B, and C as the remaindermen (beneficiaries) on the deed itself, ensuring they all get an equal share without relying on a will.

Conclusion: Don't DIY Your Estate Planning

Trying to save money by using a "kitchen table" estate plan often costs your family much more in the long run. Whether it creates family feuds because one sibling legally owns everything, or it triggers unnecessary taxes, these shortcuts rarely work as intended.

Key Takeaway: Once you sign a deed, you change ownership. You cannot use a will to "undo" or control that ownership later.

Need Help with Florida Estate Planning?

If you are in Florida and have questions about wills, deeds, trusts, or how to avoid probate without losing control of your assets, don't leave it to chance.

Contact atCause Law Office today. We are the non-stuffy attorneys here to help you navigate your legacy.

(Disclaimer: This content is for informational purposes only and does not constitute legal advice. Always hire an attorney regarding your specific situation.)