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Ask VanDLaw Your Own Question
VanDLaw, Attorney
Category: Estate Law
Satisfied Customers: 833
Experience:  Wills, Trusts, Probate, Inheritance Issues
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Does the Heirs of a warranty deed take precedence over a will

Resolved Question:

Does the Heirs of a warranty deed take precedence over a will even if a specific name is XXXXX XXXXX the deed. Only the word 'and my Heirs'
Submitted: 8 years ago.
Category: Estate Law
Expert:  VanDLaw replied 8 years ago.



I will be happy to assist you. First what State is the property in, and what State is the Estate being Probated? Thank you!

Customer: replied 8 years ago.
Expert:  VanDLaw replied 8 years ago.

Thank you. The term "and my heirs" in a Warranty deed does not supercede a Will. A Will disposes of property owned by the decedent at their death. If the Will devised the land to a devisee then they are the owners of that land. The term "and my heirs" is boilerplate language used on these deeds, it is to protect the heirs in the chain of title, but does not act as a testamentary instrument.


Whomever was named in the Will should get the property. The heirs of a warranty deed are those who would inherit the property if their were no Will.


In Florida the type of property that can be devised is limited, even by Will, if the property was the decedent's homestead. If the decedent held the property in their name only and left a surviving spouse and children even the devise of the Will may not be valid.

Customer: replied 8 years ago.
So if the will is found to be invalid does that mean the property would go to the closest living relative, even if it's a brother?
Expert:  VanDLaw replied 8 years ago.

If any part of a Florida decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:


1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. The amount a surviving spouse is entitled to, however, varies as follows:

  • If there is no surviving lineal descendant of the decedent, the surviving spouse gets the whole intestate estate.
  • If there are surviving lineal descendants of the decedent, and they are also all lineal descendants of the surviving spouse, the surviving spouse is entitled to the first $60,000 of the intestate estate, plus one-half of the intestate estate's remaining balance. Property used to satisfy the $60,000 must be valued at the fair market value on the date of distribution.
  • If there are surviving lineal descendants of the decedent, one or more of whom are not lineal descendants of the surviving spouse, the surviving spouse gets one-half of the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

  1. Decedent's lineal descendants.
  2. Decedent's parent or parents equally.
  3. Decedent's brothers and sisters and the descendants of any deceased siblings.
  4. Decedent's grandparents or their children if both paternal or maternal grandparents are deceased. Half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the children of the paternal grandparents (i.e., decedent's aunts and uncles) if both are deceased. The other half passes to the maternal relatives in the same manner. If there is no surviving kin on either the paternal or maternal side, the entire estate passes to the relatives available on the surviving side in the same manner as described above.
  5. As a next to last resort, the entire intestate estate goes to the kin of decedent's last deceased spouse as if the deceased spouse had survived decedent and then died intestate entitled to the estate (which means going through all of the above again).
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