Wills and warranty deeds are two methods of transferring real estate. Wills transfer the probate property of a decedent to specific individuals identified in the document. A warranty deed transfers property from a seller to a buyer while both parties are still alive. While it may appear that these documents do not influence each other given when each is executed, several sets of circumstances exist in which one can influence the other.
Two types of warranty deeds exist. A general warranty deed transfers property, with the guarantee that there are no outstanding mortgages, tax liens or judgments on the property. A general warranty deed also guarantees that no other person has a claim to the property. If any of those claims turn out to be false, the person who transferred the property has to compensate the purchaser for any expenses he incurred from the property being legally defective. A special warranty deed only protects the current landowner from any issues with the property that arose from the time the seller owned the land.
Read More: What is a Warranty Deed?
A probate property is an asset that the decedent solely owned at the time of his death. A warranty deed can be used to transfer property to co-owners, subject to certain restrictions that would keep the land out of a probate estate. So if a decedent co-owned real estate under a warranty deed with a spouse who is still alive, the decedent’s will cannot be used to transfer the property -- the property would automatically stay with the spouse. Any property that was owned with a right of survivorship would also not be influenced by a will: the decedent’s interest in the property would automatically go to the surviving co-owners.
Sometimes a will may make specific reference to property so that the testator can ensure that it goes to a specified person. If a person specifically leaves a parcel of real estate to a person in a will and then transfers that property with a warranty deed to another person before death, the transfer subject to the warranty deed takes precedence. This means that the person who was to receive the real estate under the will cannot take it from the person who received the property through the warranty deed. This process is known as “ademption.” Often, the person who was supposed to receive that property in the will gets nothing to offset the loss from not receiving the property.
Death Before Closing
Sometimes the mere promise of a warranty deed is sufficient to prevent a gift listed in a will from being executed. There have been cases in which the decedent had a will leaving property to a beneficiary but then the decedent decided to sell the property. The decedent executed a sales contract with a buyer but died before closing. In this case, despite the fact that the sale had not been formalized, the sales contract was sufficient and the beneficiary was unable to claim the property.
- National Paralegal College: Historical Overview of Wills
- Law Office of Arnold E. Shaheen Jr.: Probate Property vs. Non-Probate Property
- Free Dictionary: Warranty Deed
- National Paralegal College: Ademption and Abatement
- Law Library – American Law and Legal Information: Right of Survivorship
- Wills, Trusts & Estates Prof Blog: Ademption & Equitable Conversion.
John Cromwell specializes in financial, legal and small business issues. Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses.