Corona, CA asked in Estate Planning, Probate and Real Estate Law for California

Q: Can you add someone to the deed to your house but Will that your home be sold/profits split Among people not on the deed

My grandmother recently added my aunt and her husband to the deed of her home and the was told she could require they sell the home and split the money between us 5 grandkids. Is this true in California. Doesn’t a deed supersede a will? And if my aunt is a beneficiary on all her other accounts and iras doesn’t that too supersede her will if she wanted to leave anything to anyone else?

2 Lawyer Answers

James Edward Berge

  • Estate Planning Lawyer
  • San Jose, CA
  • Licensed in California

A: There is a presumption affecting the burden of proof that title to property is what it is, and that challengers that seek to prove otherwise must produce clear and convincing evidence to the contrary. It’s certainly possible that grandma conveyed title with an understanding that the property would be sold upon her death and the proceeds of sale divided among her grandchildren but what evidence besides your own self serving testimony do you have to support that belief? Is there anything in writing? Would any of the record title holders confirm that understanding? Did she tell anyone of her agreement with the current record title holders? Did she change her estate plan in reliance on that agreement? Was the transfer based on fraud, mistake, duress, misrepresentation, or coercion? Did she fully understand the consequences of her act or was she incompetent? Record title does override the Will but the Will might provide the corroborative evidence you’re looking for to prove the existence of an agreement. If you have evidence to support your case, you really should talk to a probate attorney.

Nina Whitehurst agrees with this answer

Nina Whitehurst

  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: I would agree with Mr. Berge and would add, less diplomatically then he did, no, don't do it! That is terrible do-it-yourself estate planning, and it often does not work out as planned. I can't count the number of times I read a question on these types of Ask-A-Lawyer forums that go something like this. "My mom deeded her house to my brother with the understanding (not in writing of course) that he would sell it when she passed and split the proceeds with his brothers and sisters. Now mom has passed and my brother has sold the house and he is not sharing the proceeds with anyone. What can I do?" And the answer is, not much. IF you can PROVE those were your mother's instructions to your brother, you MIGHT be able to force him to share the proceeds, but it will cost a lot if time and money to accomplish that and it is a very rare attorney that will do this kind of work on a contingent fee basis. Your grandmother should hire (or should have hired) an estate planning attorney to do this the right way.

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