Wills and deeds serve different functions. A will determines what happens to property when its owner dies. By contrast, a deed, once delivered, immediately effectuates a legal transfer of real estate. Neither document is inherently more significant than the other, and timing will often determine which legal document controls the property. Those with questions about a specific deed or will should consult an estate or real estate professional.
Will and Testament
A last will and testament, or will, is a document in which an individual (the "testator") gives instructions about what should be done with his assets after his death. Although the testator may create his will at any point during his life, the will does not take effect until the testator dies. Often, a court must also probate the will before it can begin to legally operate.
Parties use deeds to transfer real estate. One party, the grantor, who owns the property, creates a deed and gives it to the other party, the grantee, in order to legally transfer the property. A warranty deed is a specialized type of deed containing numerous promises, or covenants, by the grantor. These covenants add up to a broad promise that the grantor has complete ownership of and right to transfer the property. If events should prove otherwise, the grantee can usually sue the grantor for breach of these covenants.
Wills vs. Deeds
When a will and a deed both transfer the same piece of property, typically the deed will trump. This is not because deeds automatically override a will, but because a deed is designed to take effect immediately after the grantor delivers it to the grantee, whereas a will does not take effect immediately. Therefore, the property transfer via deed during the testator's lifetime will usually occur first, and the property will no longer be part of the testator's estate when the will takes effect.
Ademption by Extinction
When specific property left in a will turns out to be missing from the estate when the will is probated, the will's intended recipient of the property (the "beneficiary") will typically get nothing. This is a legal phenomenon known as "ademption by extinction." Usually, the beneficiary cannot even get the cash value of the property, unless the will is probated in a jurisdiction that follows the "identity theory" of ademption. In such jurisdictions, if the beneficiary can present evidence that the testator intended him to receive the value of the property, rather than only the specific property itself, he may be able to recoup at least part of the value from the estate.
- "Wills, Trusts and Estates (Seventh Edition)"; Jesse Dukeminier, Robert H. Sitkoff, James M. Lindgren and Stanley M. Johanson; 2005
- “Property (6th Edition)”; Krier, James E. and Michael H. Schill and Gregory S. Alexander and Jesse Dukeminier; 2006
- LegalMatch: What Is a General Warranty Deed?
- JRank: Ademption - Extinction