What Happens When Wills and Deeds Conflict?

Image of paper legal documents for the last will and testament. Captioned: What Happens When Wills and Deeds Conflict?

When a person passes away, the death certificate and last will are submitted to the county probate court. A person representative begins the process of passing assets along as the will directs — except when other valid legal instruments have priority. One of those instruments is the all-important real estate deed.

Houses can be left to their owners’ chosen beneficiaries through wills. But when someone who co-owns a house passes away, questions may arise as to what the last will says versus what the deed says. In case of a conflict, does the last will get the last word? Short answer: probably not. The long answer starts with the way the title is vested.

Survivorship Rights Vs. Tenancies in Common

When an owner dies, a properly signed and recorded deed directs and channels the person’s property interest to its next owner, typically according to the following rules.

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The Guide to Beneficiary Deeds

A will might seem like the simplest way to leave something to a loved one or other beneficiary, and it’s certainly the most common, but wills must be probated. This necessitates a lengthy process that can slow the transfer of property from a decedent to a beneficiary; it also opens the door to will disputes that can add further delays. Special deeds, sometimes called transfer-on-death (TOD) deeds, simplify the transfer, but they come with their own set of potential legal issues. 

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Property Transfers using a Beneficiary Deed in Arizona

The Arizona Beneficiary Deed, governed by Arizona Revised Statutes 33-405, is a useful estate planning tool. It gives owners/grantors of Arizona real estate the ability to initiate, but not complete, the transfer process to a designated beneficiary while retaining absolute control in the property. This means the owner (grantor) may sell, rent, mortgage or otherwise use the property with no penalty for waste or obligation to the named beneficiary. In addition, because the conveyance is not completed until the owner’s death, he/she may change or remove beneficiary designations at will. Because of the potential for change, there is no obligation for the beneficiary/grantee to provide consideration (money or something else of value). A.R.S. 33-405(L) contains the form and requirements for revoking a beneficiary deed.

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