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.
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.
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.
Nina Whitehurst agrees with this answer
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.