Deed, Title, Gifts of Land

Deed, Title, Gifts of Land

Grandad's will divided family land among his 4 children after his death and my grandmom's. My grandma has alzheimer's so the land has been deeded to the children. One son has since gotten her to sign a gift of deed giving his land to his wife if he dies (not back to the family as in grandad's will because they have no kids). Does this override the will.


There are a lot of important facts missing, some points are unclear and especially since real estate is involved you'll need a local real estate attorney to make sure it is all handled correctly. Having said all that, we'll try to give you some pointers to help you when you consult the attorney. We'll repeat each sentence for your question and try to give you some insights:

  • Grandad's will divided family land among his 4 children after his death and my grandmom's....It is important to know who owned the land (how was it titled) and who died first. Your grandad's will can only affect the distribution of the land after his death directly. If your grandad left the land he owned in trust to your grandma, then he could control how that trust distributes the property after her later death. if your grandma died before your grandad (which sounds not to be the case from your next statement below), then in fact your grandad's will can determine where the property went if he owned it. Be sure to clarify for your real estate attorney the ownership by provided a copy of any relevant deeds, and the date of death by providing copies of your grandad's death certificate.
  • My grandma has alzheimer's so the land has been deeded to the children...Again trying to sort out the facts. It sounds like your grandad died first, left the property to your grandmother, and because of her health issues the property has been deeded to the children. This raises lots of issues you need to have a local attorney clear up (and the real estate attorney might need the help of an attorney that handles probate, trust and estate work). If your grandfather died first and his will left the house to your grandmother, the property could have been deeded to the children by you grandma disclaiming (renouncing) the property. This would require her to file appropriate legal documents in court refusing to accept the property. Alternatively, your grandma could have received the property directly from your grandad's estate and then given it to the children. Finally, it could have been in a trust formed by your granddad's will and then transferred to the children if they were beneficiaries. There are more options but these hopefully indicate some of the more likely possibilities. You need to clarify for the attorney exactly what happened as it could have important legal and tax implications. For example, if the property went to your grandma and she then gave it to the children there could be a gift tax due on the transfer. If your grandmother renounced or gave the land, and she has Alzheimer's then she might not have had the legal capacity (competence) to make the gift. That is important because if she improperly deeded the property or improperly disclaimed it the children might not have title. It is possible that a gift or disclaimer could have been made by a court appointed guardian or under your grandma's power of attorney. It is also possible that your grandma's Alzheimer's disease has not progressed to the point where it to greatly impacted her competency (but if that is the case you probably should document that to avoid future issues). Yes, this sounds complicated, but the more you clarify the facts the less possible outcomes will be practical and the easier it will be to narrow down the facts, results and options.
  • One son has since gotten her to sign a gift of deed giving his land to his wife if he dies ... This raises a number of issues and is not clear. Whether your grandma was competent or had a power of attorney that permitted an agent to make the gift for her if she was not competent, etc. needs to be determined and documented. Was there a gift tax? Was that addressed? An accountant should determine the tax basis in the property as it will be necessary in the future. Were all the correct owners named in insurance policies during each phase of this? Was a new title policy obtained when each transfer was made? The gift deed is not clear the way in which you describe it. If the land was given to his wife if he dies, do you mean that your grandma deeded the property to him as a joint tenant with his wife? You need to clarify with a real estate attorney exactly what is on the deed and what it means. A gift to the two of them (i.e., child and spouse) would mean she could use two annual gift exclusions ($13,000 each in 2009) to minimize or avoid gift tax. It also means that she may be in the chain of title (line of ownership) and if so if they divorce (i.e., son and wife) the wife may have a claim on 1/2 or perhaps more of the property. In other words, a gift deed that has the son's wife's name might taint the property as no longer being an immune separate asset of the son. So divorce could have a very different impact if this was not handled correctly. Is the wife listed on insurance policies? It could be that she should, if she is on the deed.
  • (not back to the family as in grandad's will because they have no kids)..... Again you need to show the lawyer the will. You have layers of transfers and you need to clarify and sort them out sequentially to first understand what has happened and then determine what can be done if the result is not desired. If your grandad's will left the property to your grandma outright (i.e., not in any trust) then what his will says what happens after that may be irrelevant. If his will left it to your grandma in a trust, then you need to look at the terms of the trust and see if what was done was correct, or if it was not correct what can or should be done.
  • Does this override the will....You need to first clarify what happened and have a local real estate (and/or estate) attorney look at all the actual documents. If your grandad's will left the land outright to your grandma, and if she was competent or had a valid durable power of attorney that permitted the gift transfers you mention and disclaimers, then the property could have been transferred by her. This likely would override your grandad's will in that his will might no longer apply. If your grandad owned the property solely in his name and his will left it in a trust for your grandma, then the terms of that trust have to be considered.

Sorry if this sounds confusing but you really need to address each step, each document, and nail down what happened. It will probably be a lot simpler to flow through if you take all the relevant documents and show a local attorney. When you go take the following:

  • Grandad's will.
  • Grandad's estate tax return.
  • Letter from Grandma's physician or neurologist as to her mental status (you may need a HIPAA release to get this).
  • Copy of Grandma's power of attorney.
  • Copy of all deeds.
  • Copy of all insurance policies on the property.

Good luck.

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