Q: Is a TOD on property still good if one of my siblings passed before our mother or do we go by her Will?
My mother filed a TOD on her property after my father passed in 1990. One of my siblings passed away 10 years ago this September. The title company that filed the TOD did not put anything in it about rights of survivorship when they did the TOD for my mother. She had her Will updated after my brother passed and it was notarized. So which of the two documents do we go by?
A: Your mother prepared and filed a transfer on death (TOD) deed after your father passed in 1990. In or about 2009, your sibling (implied to be a beneficiary of TOD deed), passed away. After your sibling's passing, your mother wrote an updated "will" that was notarized.
A transfer on death deed operates independently of a will and may not be revoked by provsions of a will. K.S.A. 59-3503 (c). "If a grantee beneficary dies prior to death of the record owner and an alterative grantee beneficiary has not been designated in the deed, the transfer shall lapse." K.S.A. 59-3504 (c).
If your mother was not aware that the transfer on death deed could not be revoked by the will amendment, the outcome may not reflect her intentions. The heirs at law and beneficiaries of the alleged whose interests might be affected may enter into a valid settlement agreement that distributes the estate differently than is provided by the will. K.S.A. 59-102 (8). Assets in the estate could be redistributed to make the distribution, in conjunction with the transfer on death deed, provide for a distribution that better reflects your mother's intent. You should consult with an attorney to sort out the options.
1 user found this answer helpful
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.