the will - wishes vs deeds/title, etc

The will only has power over things that fall into the "probate estate". Things that as a matter of law go to someone do not go into the probate estate and therefore the will has no say over them.

A classic example is property (real or intangible) that is titled as "A and B, joint tenants with right of survivorship." When A dies, the property passes to B by operation of law and A's will has no control over it.

If the deed/title has only the decedent's name on it, the will can dispose of it. If the deed/title already has a joint tenancy, the will is powerless over it. Same thing if the deed/title has set up a life estate. As soon as the life estate holder dies, the property goes to the remaindermen, regardless of what any will says.

-- Rich Carreiro snipped-for-privacy@rlcarr.com

this is the situation - parents had florida vacation condo with the usual JT

first dad 3 years ago - then mom last year - everything in estate/probate.... daughter thought the condo was going to her.... but now it appears she has to "buy" it from estate

That doesn't make sense. If the condo was "Dad and Mom, JTWROS", then when Dad died the condo became solely owned by Mom. Once Mom died, the condo would go into her estate (assuming she didn't change the deed in the meantime). If Mom's will says "My condo goes to Daughter" then the condo goes to Daughter. Daughter shouldn't have to pay anything for it. (Unless there are taxes due on the condo and the estate has no cash to pay them. Then someone will have to pay the taxes before ownership can be transferred out of the estate.)

-- Rich Carreiro snipped-for-privacy@rlcarr.com

It could be a different encumberance, viz. a mortgage. If there is still a mortgage, and it has a "due on sale" clause, then the bank (if one is lucky and the mortgage wasn't bundled and sold) may be able to demand payment upon transfer, even by will. There are exceptions provided for by the Garn-St. Germain Act (12 USC 1701j-3), but they seem to apply only to buildings with less than five dwelling units. The condo might be in a larger complex.

The terms of the specific due on sale clause could themselves exclude transfers to children, transfer by devise, etc. For a lender not to include such an exception would be quite odious.

Too few facts presented.

Mark Freeland snipped-for-privacy@nyc.rr.com

Why did the daughter think it was going to her? Was she told by a parent? Was she the one who visited the parents at the condo most often, or used it on her own more than the other siblings, so she "thought" it would/should be hers? Was she listed on a deed? By "buying it from the estate", does that mean she gets the condo, but overall will get a pro rata share of the entire estate vis a vis her siblings?

Help us out here. . .

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I'm not sure if the will spelled out each property and it's disposition. That's why I was asking the academic question of the logistics of the will vs the titling of the property.

So, I guess if the condo had been explicitly mentioned in the will as going to Sally, then upon mom's death, the title/condo goes into the estate, and the title should be re-titled (how?) by the executor and go to Sally without her having to "buy" if from the estate.

HOWEVER - if those words were never written into the will, then it's too bad and all transactions are normal via the estate executors.

Correct (assuming Mom didn't change the deed after your father's death to put in a JTWROS with someone else, a life estate, a transfer-on-death, etc.)

The executor simply draws up and executes a deed conveying the property to Daughter and gives the deed to Daughter (who should then record it).

Correct.

Yup. For example, if the will said "and all my property to my children, equally" and Daughter wants the condo and the condo is worth more than her equal share of the estate, she'll have to pay the difference back to the estate so that she doesn't receive more than her designated share of the value of the estate.

-- Rich Carreiro snipped-for-privacy@rlcarr.com

yeah - that's just about how things have evolved.... We even learned about JTWROS vs Tenants in Common with respect to a mfg building that wife's dad bought with his brother, but the agreement was 1/3 brother and 2/3 dad - but it was not written that way originally..... the lawyer has since had things straightened out and everything has been fixed..... Each property, title, and mortage (if one exists) has presented a new learning experience..... a mess going back several years.