Estate, Powers and Trusts, § 3-4.2: Agreement to Convey Property Previously Disposed of by Will Not a Revocation

When a testator makes his (or her) last will and testament, typically the testator bases it on the property that he owns at that time. However, over the course of time most people buy and sell property. Property gets lost, stolen, or destroyed. As result it is not unusual for property that a testator owned at the time that he wrote his will to no longer be a part of the estate at the time of the testator’s death. Generally, if this happens, the testamentary gift associated with that property may fail. However, if the property is still part of the estate at the time of the testator’s death, but there is an agreement to sell the property, the testamentary gift would not have failed. To learn more about how an agreement to convey property affects a testamentary gift, contact and experienced New York probate administration lawyer.

If a testator executes an agreement to convey property that is disposed of in his will, but passes away prior to the conveyance being completed, the testamentary gift does not fail. Because the property was still owned by the decedent at the time of his death, the property will pass to the named beneficiary. However, the beneficiary will receive the property subject to the agreement to convey. Thus, if the agreement is to sell the property, then the beneficiary would receive the proceeds of the sale.

While an agreement to convey property previously disposed of in a will is not a revocation of that testamentary gift, there are circumstances which would result in a testamentary gift failing. One example would be if the gift is no longer part of the testator‘s estate at the time of his or her death. For example, the testator sold or gave away the property, or the property was destroyed. This would mean that the property adeemed. The difference between ademption and an agreement to convey the property is that for property to adeem, the property would no longer be a part of the testator’s estate. If there is an agreement to sell or convey, the property is still in the testator’s estate, but it is subject to that agreement.

Abatement is another way that a testamentary gift can fail. Abatement occurs when there are not enough assets in the estate to allow for a testamentary gift. During probate, before assets in the estate can be distributed to the beneficiaries according to the terms of a will, the executor is required to pay all estate debts. This may include bills that the decedent had at the time of his death. It may also include funeral and burial expenses. The executor is also required to pay expenses related to the administration of the estate out of estate assets. If there are claims against the estate, the executor must settle and pay all valid claims from estate assets. In some cases, after all of these items are paid, there is not enough property left in the estate to pay to distribute to beneficiaries according to the terms of the well. When this happens all o part of a testamentary gift, may fail. In addition, if a beneficiary predeceases the testator, then the gift to that beneficiary will fail due to lapse unless it is subject to the New York anti-lapse statute.

The best way to avoid the possibility of a testamentary gift failing for any reason is to regularly review and update your will with the help of a probate administration lawyer in New York.

The best way to avoid problems during probate related to property that is subject to an agreement is to update your will. A will can be updated either by a codicil which is an amendment to a will, or by executing a completely new will. Whichever method you choose to make changes to your will, doing so makes your intentions clear to the Surrogate’s Court, to the executor, and to beneficiaries. If you decide to sell property that was initially going to be disposed of in your will, you can then decide if you would like to give that beneficiary something else from your estate.

In order to make an amendment to your will, you need to execute document that states the changes using the same formalities that are required to execute a will. In other words, the testator must sign it at the end. It must be in writing. It must be witnessed by at least two disinterested individuals who must also sign it. As a New York probate administration attorney will explain, if you decide to execute a completely new will, by doing so you will have revoked the prior will.

In his will Edgar decided to leave his nephew this house. Twenty years after Edgar executed his will, the real estate market was doing great. He learned that he would be able to make a significant profit if he sold his house. Edgar decided to do so and move into a smaller house. Edgar’s real estate agent quickly found a buyer and a contract to sell the house was executed. A few days later, prior to closing, Edgar had a massive heart attack and passed away. Because the sale of the house was not completed, the house was still in Edgar’s estate. Thus, the nephew would still get the house subject to the agreement to sell. Once the sale is complete, the nephew would receive the proceeds.

If the sale of the house was completed prior to Edgar’s death, then the house would no longer be in the estate. As a result, the gift to his nephew would have failed.

1. Revocatory effect of a conveyance, settlement or other act affecting property previously disposed of by will: Estates, Powers and Trust, § 3-4.3
2. Conveyance of property of an incompetent or conservatee, previously disposed of specifically by will, not revocation or ademption: Estates, Powers and Trust, § 3-4.4

An agreement made by a testator to convey any property does not revoke a prior testamentary disposition of such property;  but such property passes under the will to the beneficiaries, subject to whatever rights were created by such agreement.

Probate is a long process and can be complicated. It typically takes at least seven months. If there are any complications or disputes, probate can take a year or longer. Thus, it is important to discuss any problems such as an issue related to an agreement to convey property previously disposed of by will with an experienced probate administration attorney serving New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters related to drafting wills, changing wills, as well as matters related to will challenges, probate litigation, and probate administration. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, the Bronx, Brooklyn, Long Island, Manhattan, Queens, Staten Island, Suffolk County and Westchester County.