Does a deed override a will ? One spouse's name is on the deed. He has left the house to his 3 daughters at the time of his death. His wife ...

Question

Does a deed override a will ? One spouse's name is on the deed. He has left the house to his 3 daughters at the time of his death. His wife is his POA, they have been together for 24 years, married for 17 years. He is very ill, she is his caregiver. This house is a rental property. She will need the income from this house to survive after his death. She doesn't, want to upset her husband by interfering, but will need the money. She has been advised that she can just go down to the courthouse and put her name on the deed. Would she get the house then at the time of his death? His will leaves the house to his daughters. As far as she knows, his name is the only name on the deed. Also, does it have to be published in the paper, if she would add her name to the deed.

Answer

Your question was a little unclear to me. If only the husband's name is on the deed, his will controls the disposition of this asset (although the wife might be able to claim a 1/3 elective share if he cut her out of his will completely).

If both names are on the deed:

There are generally two types of deeds when a husband and wife own property together. The first type of deed provides that the survivor automatically inherits the property. (You can identify this type of deed because it is listed with the names of the individuals followed by either "husband and wife" or "with rights of survivorship".) In this scenario, the deed trumps what the Will says.

The second frequently used deed where both names are listed, is a tenancy in common. This means that each party only owns 1/2 of the property and they can do what they wish with their 1/2. Here, the Will controls as to that 1/2.

I would suggest showing a copy of the deed to an attorney to clarify the situation.

Best of luck.

Kevin A. Pollock, J.D., LL.M.

www.PollockAtLaw.com

P: (609) 818-1555

Licensed to practice law in Florida, New Jersey, New York and Pennsylvania.

Also, visit my blogs at:

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Answer

It also occurs to me that I should mention this: changing a deed by using a power of attorney could be treated as a fraudulent transfer. So if the wife does a transfer without asking her husband there may serious legal ramifications.

Answer

I agree with Attorney Pollock. If the property was solely in the husband's name as shown by the deed, then the wife cannot just use the power of attorney to deed the home to herself. She had better have the power of attorney language reviewed very carefully. Depending on how its drafted it may or may not allow the agent to make gifts at all or over a certain amount.

Why is her name NOT on the deed? What does the will say? Is the husband mentally competent? If so, he can revise his will. He could do a lot of things - he could give the wife a life estate in the property which would allow her to manage it until her death or he could make some other provision for her.

Further, there is no publication when someone is added to the property. If the property is conveyed, that fact is published in the newspaper. Who reads this stuff? I would wager very few people unless they have a particular interest or are Gladys Kravitz-types.

I also agree with Attorney Pollock's comment regarding an elective share. I don't know what else the will says or what else the husband owns, but if the will does not make adequate provision for the wife, she can claim an elective share of 1/3rd of the estate.