Perris, CA asked in Estate Planning for California

Q: if a will says to split the assets but the asset is in another sibling name, does she have to honer the will?

the asset is a home that is now in my sisters name.

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3 Lawyer Answers
James Edward Berge
James Edward Berge
Answered
  • Estate Planning Lawyer
  • San Jose, CA
  • Licensed in California

A: No, if the property was held as joint tenants with rights of survivorship. In that case, the property belongs to the surviving owner. A Will only has dispositive effect on individually owned assets that have no beneficiary designation.

Chris M. Bradford
Chris M. Bradford
Answered
  • Estate Planning Lawyer
  • Santa Monica, CA
  • Licensed in California

A: If the deed is in two names, the person who died and your sister, then the home probably is now 100% your sister's. She must get the old deed transferred into her own name exclusively. To do this right she should have an attorney. It is not expensive. The first deed should be checked by an attorney because there are different types of deeds.

So, if a will is written, but there is an ownership document that has two names on it (like a deed), the will does NOT override it. A will only takes care of items with only the owner's name on it, with no beneficiary, and items which have no ownership papers. An attorney should look at everything to make sure.

But there is an outside possibility that the deed was transferred into joint names with your sister by undue influence or pressure. If that occurred, you would have to file a lawsuit to get the judge to cancel the deed. This does not happen often. However it is a possibility and you DEFINITELY need to talk to an attorney before you try to do this. Do not do this on your own.

When you ask a question online, like here, the answers you get are only going to be basic information, a starting point. Attorneys are trained to talk to you to find out all the important details of your story. Getting all the details is very important because it will make a big difference in the legal information given to you. It is strongly recommended that even if you get a response here on Justia, that you also talk to an attorney. Some have free first interviews. Even if you have to pay, it is worth it because you talking to a professional who is going to focus on you.

Any Attorney in California: Also there is no requirement that you talk to an attorney in your area. Any attorney licensed in California can help you no matter where you live as long as the issue is in California. The interview would be done by phone, Zoom, Skype, Facetime or some other type online method. Even if the attorney is in your area, many attorneys are only talking to people this way due to the Covid pandemic, so you couldn’t have an interview in their office anyway. Give one of us a call. We are here to help.

By the way, after you have resolved your immediate issue, you should consider writing a will or a trust for yourself and have an attorney go over things that you own to double check everything is going to whom you want it to. It sounds like your parent did not know that a will does NOT override a deed with joint names. There are details that need to be looked into. So don't let this happen to your own children or whoever you want to give your items to.

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Jeffrey Louis Gaffney
Jeffrey Louis Gaffney
PREMIUM
Answered
  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: I am afraid that if her name is on the asset, then it belongs to her and the Will had no control over it (unless the deceased's name is on the asset too, in which case it gets harder and depends on exactly how the names are on the paperwork).

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