Gardner, KS asked in Real Estate Law for Kansas

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?

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1 Lawyer Answer
Scott C. Stockwell
Scott C. Stockwell
  • Lawrence, KS
  • Licensed in Kansas

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.

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