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  • Lee Pope

Wills and Trusts - Careful What You Convey

Many individuals believe their last wishes will always be carried out as set forth in their Last Will and Testament. However, how an individual changes their interests in real property (land) and personal property (possessions) during their lifetime can have significant consequences on what is conveyed upon death. Accordingly, it’s important to double check how conveying assets during your lifetime might impact the last wishes set forth in your Will.

For example, if an individual owns property but grants another person a right of survivorship, that right of survivorship will trump how the property is otherwise conveyed in your Will. That was the exact case in Lowry v. Lowry, 541 S.W.2d 128, where The Tennessee Supreme Court determined that legal right and title to property is conveyed to those with a right of survivorship immediately upon the property owner’s death, regardless of whether the property owner meant to otherwise convey the property in their Last Will and Testament.

Additionally, if a property owner takes certain actions during their lifetime that interfere or are inconsistent with the operation of their Will, they could possibly extinguish bequests or gifts otherwise set forth in their Will through the legal theory of “Ademption by Extinction,” which will render those bequests or gifts legally invalid. See Stewart v. Sewell, 215 S.W.3d 815 (Tenn. 2007).

I’ve also seen where an individual quit claims title to property during their lifetime consistent with their Will but doesn’t realize that conveyance terminates their other wishes respecting the property. The reason for this is that a will takes effect as if it has been executed immediately before the testator’s death and the Will is only construed as including property owned by the testator at the time of his or her death. As such, if you convey away an interest in your property during your lifetime, that property cannot otherwise be conveyed after your death. This may seem obvious, but many people don’t realize conveying the property during their life may remove any contingencies they have related to the conveyance upon their death. For example, my Will might convey to my buddy Bill a piece of property upon my death so long as he agrees to convey it to my grandchildren upon his death. But, if I quit claim the property to Bill before my death, he’s no longer required to convey the property as set forth in my Will.

These situations show how easily an individual can convey away rights and interests in direct contradiction with the wishes set forth in their Last Will and Testament. And, these pitfalls demonstrate why it is essential to work with attorneys familiar with your wishes when making conveyances during your lifetime and that you double check with your attorney prior to making conveyances to make sure your bases are covered and your last wishes remain intact.

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