What takes precedence – a Will or a deed?

UPDATED: May 1, 2014

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What takes precedence – a Will or a deed?

My mother has recently passed away. She had a Will and in it she was specific about how she wanted her house divided and sold among her 4 children. My mother, years prior, had her house put in my brother’s name but never told him that he owned the house. Since her passing there has been nothing but arguing and disagreements to what legal rights we 3 sisters have. My brother said we have none because his name was on the deed. However, mom’s Will was specific about her wishes that the house would be let to her 4 children. My brother was executor on the Will and 3 of us sisters are beneficiaries.

Asked on May 1, 2014 under Estate Planning, Massachusetts


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

In the case you describe the deed: a will only distributes the property that belonging to the testator (person making the will) at the time of his/her death, but does not distribute or change ownership of property previously given or sold to anyone, and also does not prevent the testator from doing as he/she wishes with property while alive. So if the house were deeded to your brother while still alive, it will be his.

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