Q.  A few years ago, our mother signed a Joint Tenancy Deed adding our brother to the title on her home. More recently, she signed a Last Will leaving the home equally to all three of her children. She passed away last month and we are now conflicted about who owns her home. Does the Will override the Deed?

A. Sadly, your situation is all too common. Parents sometimes forget their prior transactions, or mistakenly assume that their Last Will is controlling. Unfortunately for you and your other siblings, the Will generally does not override the Deed. Rather, the general rule is that the Deed controls.

Background:  A key feature of the Joint Tenancy Deed is that, upon death of a joint tenant, it passes full ownership by automatic succession to the survivor without probate and with a minimum of paperwork. Absent a successful court challenge, this means that your brother, as the survivor, became the owner of the home immediately upon your mother’s death.  This result is usually what people intend, and many use the JT Deed as a device to avoid probate and simplify the transfer of ownership after death.

Exceptions:  There are, however, situations where the general rule does not apply.  They include the following:

1) Where the Deed was procured by duress or undue influence.

2) Where the formalities of preparing and signing the Deed were not fully observed.

3) Where your mother later severed the joint tenancy by, for example, signing a new deed conveying all or part of the home to someone else, or by conveying the home into a trust with provisions which conflict with the JT Deed. A severance eliminates the right of survivorship, which means that at least a one-half interest in the home would then be preserved for her to convey by Will or Trust.

4) In other situations, where a homeowner adds his/her caregiver (who is not a family member) to title without observing certain necessary formalities (such as a review of the transaction by an independent attorney).  Here, there is a legal presumption that the deed was the product of undue influence and therefore voidable by a court.

Question:  Are there any facts known to you to suggest that the JT Deed was the result of your brother exercising undue influence over your mother?

Another question:  At the time of creating the later Will, did anyone check the status of title to her home?  If they had, the problem might then have then been discovered and suitably addressed.

In sum, the general rule is that the Joint Tenancy Deed overrides the Last Will. However, there are exceptions to that general rule. Where those exceptions apply, a court, asked to rule upon them, may find the Joint Tenancy deed to be entirely voidable or, alternatively, may deem the survivorship aspect as terminated.  In such cases, the right to ownership would depend upon the directions in your mother’s Last Will or her Trust, at least to the extent of a one-half interest in the property. In your situation, the full facts surrounding the preparation of both the Deed and your mother’s Last Will should be fully explored before you come to a final decision on ownership.


References:  CA Civil Code §683 (creation of joint tenancy); CA Civil Code § 683.2 (severance of joint tenancy); CA Civil Code §1575 (Undue Influence); CA Civil Code § 39 (Rescission of conveyance made by person of unsound mind).