Posted by : Long H. Duong, Esq. on August 22, 2007
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First things first. It’s not a “quick” claim deed , it’s a quit claim deed.
If a quit claim deed or a warranty deed was properly executed from a decedent to a beneficiary BEFORE the decedent died, that property is not considered a “probate asset,” and does not have to go through probate in Florida.
How do you know if a deed was validly executed? In general, a deed has a “grantor” (the owner or transferor at the time of the execution of the deed) and a “grantee” (the buyer, recipient or transferee of the property of the executed deed.) Additionally, the deed must recite the proper legal description of the property. And in a perfect world, the following elements would be met:
- There is a contiguous and chronological “chain of title” leading up to the grantor of the deed.
- The grantor was competent to sign the deed.
- There is no evidence of impropriety surrounding the execution of the deed (coercion, duress, undue influence).
- The signing/execution of the deed was performed before two (2) uninterested parties (no beneficial interest in the deed transfer) and a Notary Public licensed in the State where the deed was signed.
- If the grantor was married, the spouse may have been required to join in and sign the deed (this approaches more discussion about homestead laws which is beyond the scope of this article.)
Recording a deed does not in and of itself have any bearing on the validity of the execution of the deed. However, it does preserve the proper chain of title and leaves a rebuttable presumption that the grantee of the deed has some right or interest in title to the property.
Again, if the property was validly transfered by a properly executed deed before the death of the decedent, it’s probably not subject to Florida Probate.
Unsure? Contact your local title company or contact us.
Maria Cardoso says
can i get this question answered. if a married person having just one name and wanting to quit claim to a young adult child, do they need to have the other married party sign also. or can this be done with just the one party that the property name is in… please answer ASAP if you can answer
Long H. Duong, Esq. says
Thank you for your submission.
You’ve got more of a real estate question than a probate question. You’ve got a possible homestead issue there too. This website is not the appropriate venue to address your question. Feel free however, to contact my office directly to discuss the matter. (352) 371-2670
Robin says
If two people (not married) own a home (homestead) in Florida Joint tenants w/right of survivorship. Before one dies they sign a quit claim deed giving their interest to someone else. The deed has not been recorded by the time the person dies. Is the quit claim deed still valid?
alice says
HOW LONG IS A QUIK CLAIM DEED WHICH IS NOTORIZED
GOOD FOR DUE TO MONEY PROBLEMS AT THE TIME
WE DID NOT FILE AND PAY DOC STAMPS NO WE ARE
RE DOING A MORGAGE AND I HAVE TO FILE SO THE MORG. AND THE PROPERTY WILL STAY IN MY NAME
roxie kaen says
my question is if land that is joining my land, has never had taxes paid on it and is on record as not being owened or deeded to someone, can i do a quick claim deed on it, as to in to myself, and then if some one comes alone and say they own it, can they legaly take it from me.? this is whats happened, i would like to know my rights, it was never owned or deeded to this person, and he has never paid taxes on it, he just says his father gave it to him , and he has been collecting rent fee from a lady that has a trailer on it.
Bonnie Buscemi says
My mother lives in Florida and wants to add my
name to the title of her mobile home. What is the
proper procedure to handle this and am I required
to be in Florida to sign the paperwork involved?
I live in Illinois.
Please e-mail response to me.
Thank you.
Bonnie Buscemi
Long H. Duong, Esq. says
With actual real estate, your mother would only need to deed the property from herself back to herself AND you.
You shouldn’t need to sign anything. That said, other issues may need to be considered because you haven’t explained whether or not she owns the land that the mobile home sits upon.
Mobile homes are generally considered to be personal property (much like owning a car) and NOT real estate.
Feel free to contact me offline. Info: http://weprobateflorida.com/contact-information/
Dlorah Keller says
My sister Husband died three yrs. ago and their home was in his name lone. She needs the house in her name for a loan to put a new roof on the house ,the kitchen ceiling is about to fall. what does she need to do?
Dlorah Keller
Dianne says
A quit or quick claim deed was signed by my Parents and the property owner (Sue) a few years ago. My parents have been making the mortgage payments. Sue’s daughter in-law informed my Mom that Sue is in a coma and they want to sell the house to my Mom, if she does not want the house, they will sell it to an interested party. My parents did not refiance the property. What are our options?
Long H. Duong, Esq. says
Sounds like she may need to probate her husband’s estate. Have her contact me off list (click “Free Case Review” at the top of this site.)
Long H. Duong, Esq. says
@Dianne:
I’m missing quite a few details. Contact me off list (click “Free Case Review” at the top of this site.)
arlene says
I WOULD LIKE TO KNOW IF I CAN SELL MY HOUSE OR TAKE MY TWO MINOR KIDS OF A QUIT CLAIM DEED REMEMBER THEY ARE MINORS STILL IT SAY ON THERE MY NAME AND AND MY TWO KIDS NAMES WITH AND NOT OR PLEASE LET ME KNOW WHAT I CAN DO THANKS
CAROLYN KERVIN says
MY HUSBANDS MOTHER QUIT CLAIMED HER HOME TO THE 2 OF THEM IN 1996. THEN A YEAR LATER DID ANOTHER QUIT CLAIM TO HERSELF, MY HUSBAND, AND HIS SISTER.
WOULDN’T MY HUSBAND HAVE HAD TO SIGN THE DEED ALSO. HOW CAN SHE ASSIGN HIS INTEREST TO HER DAUGHTER?? SHE IS DECEASED NOW AND OF COURSE THERE ARE PROBLEMS.
Maria says
I have a question , prior to getting married my husband signed a quit claim deed,,,,now we are getting divorced….should I worry about the property?
Long H. Duong, Esq. says
@ Carolyn Kervin:
It truly depends on the specific language of the deeds. Please contact me offlist: http://weprobateflorida.com/contact-us/
Long H. Duong, Esq. says
@Maria:
To whom did your husband sign a quit claim deed?
Maria says
THANX FOR RESPONDING I AM LOSING MY HAIR OVER THIS , HE SIGNED IT OVER TO ME PRIOR TO US GETTING MARRIED ABOUT EIGHT YEARS AGO. NOW WE ARE GETTING A DIVORCE…
Elizabeth Erick says
My mother in law owned a mobile home in Florida. She owned the lot it was on with my sister in law but the mobile home was in her name alone. Do we need to probate her will in Florida to transfer title of the mobile home? I have heard conflicting answers. PLease help us do the right thing.
Long H. Duong, Esq. says
@ Maria
That’s a tough one. On its face, it seems the property is yours. On the other hand, if it’s your marital home and you have any intention of selling it BEFORE the divorce, a title company might want his consent if there is no premarital agreement. I tend to think the former option is correct.
You should also contact a family (divorce) attorney about your case if you haven’t already. You don’t have a probate question - you have a divorce question. Good luck!
Gladys says
In 1940, My Grandmother wanted to purchase and did not have proof of income. Her daughter had proof and became the primary buyer, my grandmother co-buyer. My grandmother paid for the home entirely including taxes.
My grandmother died in 1976 and her daughter died in 1982 neither had a will. The house has never been in probate.
in 1994 one of the grandchild was allowed to live in it with the understanding that they’d be responsible for taxes and the upkeep of the house. in 1996 she solely executed a quit claim deed and in 1999 she took out a mortgage. The house was foreclosed and that’s when the other siblings was aware.
Is there anything thing we can do?
Long H. Duong, Esq. says
@Elizabeth:
The answer is “it depends”. Have you seen the deed for the land or the title to the mobile home? The language on both documents is important to determine if probate in Florida is necessary.
Contact me privately by clicking here: http://WeProbateFlorida.com/contact-us
Long H. Duong, Esq. says
Dear Gladys:
If the property has already been foreclosed upon, getting it back will be difficult. You may want to contact a foreclosure defense attorney to investigate to be sure that all parties (including heirs) where properly notified - or attempted notification was proper.
Having said that, there may be light at the end of the tunnel if the property was auctioned after foreclosure and the winning bid was for more than the liens and mortgages against it.
For example, if the mortgage and liens totalled $100,000 but the house was auctioned for $200,000, then the difference of $100,000 would technically belong to the heirs.
If you have contact information for the lawyers that handled the foreclosure, you may want to contact them and find out if there was a significant surplus from the foreclosure auction.
If there was, you’ll need to probate the estate.
Feel free to contact me privately by visiting http://WeProbateFlorida.com/contact-us
Chester says
My wife purchased a property on her name prior to us getting married. I’m not in the title or mortgage or have had anything to do with this property. Because of the situation in Florida, her property is going into foreclosure. Can the bank come after me, my income, or any of my assets given that this property was purchased before by my wife prior to getting married?
Thanks,
Chester
Long H. Duong, Esq. says
Chester: If you didn’t co sign the mortgage, you aren’t liable for it, rather, your wife’s ESTATE may be liable.
Renee C says
My husband and I have been married for 15 years. Our home is paid off, but it is in his name only since it was his before we got married. He has no will. What will become of the home if he dies? Do I have a legal right to it?
Renee C says
I forgot to mention that we live in Florida.
Tina says
My husband and I are separating. He is willing to Quit Claim our home to me. What steps do I have to take? Thank you.
Long H. Duong, Esq. says
@Tina:
This is really a question for a divorce attorney. However, if you’re just looking to have a deed prepared, please contact me off list by filling out our “In a hurry? Quick form” which appears on the right side of any page on our website: http://www.WeProbateFlorida.com.
Long H. Duong, Esq. says
@Renee C:
If he died today, you would probably have to go through a summary probate proceeding to move it into your name. You should probably be added to the title. Contact me off list by filling out our quick form which appears on the right side of any page in our website: http://www.WeProbateFlorida.com
Mary H says
My girlfriend done a quit claim deed to herself regarding her property & it is quit claimed to me at the time of her death.
This happened at her lawyers office & they filed it at the court house the same day. this was done in Pensacola, Fla.
My question is can she change her mind?.
Also can her children affect the quit claim after her death?.
DeWayne L. says
My father died in 2005, my mother still has a mortgage on the property, her health is declining, would a quick claim deed be the solution for her to have my name on the property, in the event something happens to her?
DeWayne L. says
Also, would a quick claim deed keep the property out of probate? Thanks
Long H. Duong, Esq. says
@DeWayne:
I know you and I have talked already so I won’t go into to too much detail. Short answer is “it depends”. Remember, it’s a “quit” claim deed. Other possibilities include a Ladybird Deed (aka Enhanced Life Estate Deed) but you may have bigger estate planning concerns.
Long H. Duong, Esq. says
@DeWayne:
What keeps property out of probate is not dying without a proper plan for distribution on or before death. I’m short on time and since I know we’ve talked, I’ll write up a full article on this later.
Thanks.
Long H. Duong, Esq. says
@Mary H:
Depends on exactly how the deed is worded. Does it say JTWROS (joint tenants with right of survivorship)? Or is it possibly a “ladybird deed”?
Contact me through our quick contact forms on the site: http://www.WeProbateFlorida.com/contact-us fore more info.