Transfer Title during Life or by Will

A title owner can voluntarily transfer her title to someone else during her lifetime. Such a transfer may be called an inter vivos transfer, meaning a transfer during life.

The statute of frauds says that a conveyance of title to real property is enforceable only if it’s evidenced in writing. Although there are exceptions to the statute of frauds, a title owner generally must sign a written document in order to convey title.

The written document conveying legal title is called a deed. A deed must include the following to be valid and enforceable:

  • The names of the grantor and the grantee

  • A valid description of the land to which title is being conveyed

  • Words indicating an intent to presently convey the title

  • The grantor’s signature

A deed conveys title only when the title owner delivers the deed to the grantee and the grantee accepts it.

A title owner can transfer her title to another party upon her death. The document that transfers title at death is a will, and the grantor is called the testator. Regardless of how the grantor labels the document, the document is a will if the grantor intends the conveyance to be effective only upon her death.

The following generally must be true in order for a will to be valid and effective:

  • Signature: The testator must sign the will, or in most states, someone else may sign the will for the testator if the testator so directs and the person signs it in the testator’s presence.

  • Acknowledgment: The testator must either sign the will in the presence of witnesses or acknowledge to witnesses that she signed the will. Most statutes require two witnesses; some require three.

    Under the common law, a person who receives property by the will can’t be a witness; today most state statutes allow such a person to be a witness if necessary for the will to be valid but void the grant to the witness.

  • Publication: Some state statutes say that the testator must somehow indicate to the witnesses that the document is her will. This indication is referred to as publication of the will.

  • Attestation: The witnesses generally must attest the will by signing it in the presence of the testator and sometimes each other as well.

In some states, a will is enforceable without these formalities if the testator wrote the entire will by hand and signed it. Such a will is called a holographic will.

Because a will isn’t effective until the grantor dies, the grantor can revoke it any time before she dies. She can simply cancel or destroy the will, or she can execute a new will that expressly or implicitly revokes the old will.

Some state statutes say that a will is revoked if the testator subsequently marries or has children, unless the will indicates a contrary intention. A divorce also may implicitly revoke a will in whole or in relevant part.

A grant of real property by will is called a devise, so those to whom the will gives real property are called devisees. Those to whom the will gives personal property are called legatees.

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