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Does a lady bird deed supersede a will?

In most cases, if there is a conflict between a valid will and a valid lady bird deed, the deed will prevail.

This is because the lady bird deed is a present transfer of a future interest that is subject to divestment at the discretion of the property owner. In other words, the deed is giving away the future right to the property the day it is executed. Even though the decedent retains the right to take that right back, if she does not do so before her passing that interest automatically passes to her intended beneficiary.

A will is essentially an authenticated set of instructions on how the decedent (the person who has passed) would like their estate distributed. In most circumstances, these instructions can only apply to stuff that is still in the estate after her passing. Since the interest in the property vests (legally activates) the moment the decedent passes, there is nothing for the will to then distribute.

While a will typically trumps a lady bird deed, there are other situations in which a lady bird deed can itself be trumped, such as claims from certain family members when the property is considered the decedent's Constitutional homestead.

Speak with an attorney to understand the benefits and consequences of using the powerful tool that is the lady bird deed.

Published: Feb 9, 2023

Updated: Nov 24, 2022

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