A Will Only Disposes of Items the Testator Still Owned on the Date of Death

Dear Mr. Premack: My grandmother, in her Will, left everything to her two children. At the time of her death she owned six cemetery plots. So, I would assume that her two children are now the owners of the plots. However, a few years ago, one of her sisters said my grandmother had given her the cemetery plots by a signed and notarized document allegedly signed by my grandmother using an “x” for her signature. Other family members say my grandmother never signed with an “x” as she knew how to sign her name. That sister later signed papers giving the plots to her daughter, and then died. Who now is the rightful owner of the cemetery plots? Does an alleged signed and notarized document annul what grandmother’s Will stated? – CG

A Will can only dispose of items that the decedent still owned on the date of her death. The question is: did your grandmother own the plots on the date of her death, or had she gifted them away during her lifetime? Or rather, was the document allegedly signed with an “x” by your grandmother legally valid? If the answer is “yes, it was valid” then it most definitely overrode the instructions in her Will. If the answer is “no, it was a fake” then she still owned the plots when she died, and they passed according to the terms of her Will.

The real problem, however, is that both sides in this argument could be right, and that both parties to the alleged gift (your grandmother and her sister) are unavailable to testify. Compound that with the fact that her sister conveyed the plots again, and you have a potential “innocent third party” from whom the plots cannot be recovered even if the first transaction was illegal. Consider also that the value of the plots is likely to be less than the cost of litigation. Grandmother’s two children must decide whether they want to take this to court.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 23, 2010

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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