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Deed versus will - property sold without consent

Discussion in 'Joint Ownership' started by TraceyK, Feb 12, 2015.

  1. TraceyK

    TraceyK Law Topic Starter New Member

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    My grandparents purchased land in 1949 in Virginia. In 1950, a deed was created between my grandfather (party of the first part) and my grandmother with their six children (party of the second part). The deed states:

    "This deed made this Feb 2, 1950....by and between [my grandfather], party of the first part, and [grandmother], [child 1, child 2, child 3.....child 6], and any other children that may be hereafter born to said [grandfather] and [grandmother], parties of the second part, witnesseth: That for and in consideration of the sum of five dollars cash in hand paid by the parties of the second part to the party of the first, and for other good, valuable and sufficient consideration moving from the parties of the second part to the party of the first part, at and before the signing, sealing, and delivery of this deed, the receipt of all of which is hereby acknowledged, he, the said party of the first part, does hereby grant and convey with general warranty of title unto the said [grandmother], [child 1, child 2.....child 6], and any other children that may be here-after born to said [grandfather] and [grandmother], parties of the second part, an undivided one-half interest in and to all that certain tract of parcel of land consisting of twelve acres more or less, this being a conveyance in gross and not by the acre, situate on ....[plot boundaries] the other undivided one-half interest in said property having been conveyed to this grantee, [grandmother], by said deed."

    My grandfather passed away in 1980, and my grandmother remained on the property. She devised a will in 1990 (four years before she passed away) that names only three of the children as beneficiaries and executors of her estate and specifically excludes her other three children. The will states:
    "Being mindful of the fact that I have other children and grandchildren of a deceased child, I nonetheless give, devise and bequeath all of the rest, residue and remainder of my property, both real and personal, whether now owned or hereafter acquired, of whatsoever character and wheresoever situate, unto my children, Child 1, 2, and 3, in equal interests. I do devise and bequeath unto my children heretofore listed my interest in real estate containing twelve acres, more or less, the same being a one-half undivided acquired interest by deed dated Jan 2, 1949, .... and one-twenth (1/20) undivided acquired interest by deed dated Feb 2, 1950.... I hereby nominate and appoint my children Child 1, 2, and 3, as co-executors of this my last will and testament, and direct that they may be permitted to qualify without surety on their bond as such. My co-executors heron named shall have full power and authority to sell, transfer and convey any and all property, whether real or personal, or interest therein, of which I may die seised and possessed, without liability upon the purchasers, thereof to see to the application of the purchase money...."

    Since the development of the aforementioned deed, my father passed away; therefore, my siblings and I are the "grandchildren of a deceased child" noted in the above will. In addition, one of the three brothers named as co-executors passed away, so one of the remaining two is attempting to purchase the property from the other one without the consent of any of the other three siblings or my siblings and I.

    My questions:
    Doesn't a deed supersede a will?
    What is the benefit of my grandfather deeding my grandmother and their six children one-half interest of the property and my grandmother the other one-half?
    Since both grandparents, and two of the six children including one co-executor are now deceased, what rights do the remaining children have?
    Do my siblings and I - since we are the grandchildren of their deceased son - have any rights to the said property?
    Can the two remaining co-executors legally sell the land as they see fit?

    Any assistance you may provide is sincerely appreciated. Thank you in advance!

    Any insight you may provide is greatly appreciated. Thank you!
  2. army judge

    army judge Super Moderator

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    That depends, if one or all of the proposed beneficiaries named in the will outlive the testator.
    In order to inherit anything, one must outlive the testator.

    In order to say definitively, one would have to read the will and the deed.

    You should take BOTH items to an attorney in your county for a legal, written opinion.

    I'm not sure your grandfather's intent was expressed clearly, as he isn't among us now for anyone to ever know.
    That said, your grandfather and grandmother would have normally been equal co-owners in the property prior to his demise.
    One could make a case that grandfather was able to deed away his half, and none of grandmother's.
    Again, only a probate judge would have been able to offer an opinion that would be of any legal value.
    As no one appears to have disputed the will or the deed, you're never likely to know for sure.

    That is the ultimate question that might have to be played out before a court.
    Most of these cases end up with a petition for partition, the property is sold at auction, the proceeds divided equally among the heirs.
    Or, sometimes one of the the parties will offer a buy out to the others, ending things amicably.
    One size never fits all.

    Again, I suggests you consult a local attorney.
    One would have to do some research to say for sure.
    The will could be definitive, assuming all was above board.

    TraceyK likes this.

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