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Unrecorded Quitclaim Deed is a Poor Estate Plan

Dear Mr. Premack: In 2003 our mother signed a notarized quitclaim deed of her Texas real property (which was in her name only) to her surviving three grown children. This was a quitclaim form that she filled in by hand. She has no debts or other property to probate. The deed was never filed, and now she has died. Our questions are: 1. Can we file it at the courthouse now? 2. Since the deed was not witnessed and was not signed by the grantees, is it legally valid? 3. What other remedies are there to correct this now that she has died? – JM

The idea behind your mother signing this quitclaim deed was that she could claim to own the property while living, but on her death her children could record it and claim ownership. Using an unrecorded deed is a risky way to make an estate plan, and is a perilous way to handle title to any piece of real property. You can record it at the courthouse now, but there are a variety of potential problems with this whole scheme. For instance:

1. What if someone with a possible legal claim filed a different deed before this one was recorded? Or worse, what if your mother became confused or was scammed into signing a different deed? The one filed first at the courthouse would determine ownership, not the one she signed first.

2. The deed could have been lost after she signed it. She would have been keeping it among her personal papers since it was unrecorded. What if she had inadvertently thrown it away when cleaning or due to a mentally incapacity?

3. With an unrecorded deed, she is trying to validate two versions of reality. What I mean is this: from 2003 until the date of her death, she claims to own the house even though she has signed the unrecorded deed. When she died in 2011 and after the deed is recorded, the legality is that she did not own the house from 2003 until the date of her death (the deed is effective as of the date it was signed).

The contradiction is important, because when you go to the local appraisal district to have the tax account put into the names of the three children, the district will note that title was transferred in 2003… but under your mother’s other version of reality she continued to claim it as her homestead and paid lower taxes. The district must reject your mother’s fictional version of reality. They will re-examine the records and present you with a bill for past-due taxes under the reality that you owned the property from 2003 forward and had no homestead exemption.

You ask if the deed is invalid because it was not witnessed and was not signed by the grantees (the three children). Those two steps are not required for the deed to be valid. However, it is problematic that your mother used a “quitclaim” deed. A quitclaim does not include a legally binding “general warranty” saying that she legally owned an actual interest in the house. When you try to sell the property at some future date, you may be challenged by the buyer’s title company to prove there is no other person who has or may claim ownership of the property.

You ask if there is any other remedy to correct the situation. If your mother had a Will, you should probate the Will to bolster your legal claim to ownership. The Executor would properly convey whatever interest your mother may have in the property to the three children (assuming they are the ones named in the Will as devisees). If your mother did not have a Will, you may have to share partial ownership of the property with any nieces or nephews from your siblings who died before your mother.

There is also a deeding technique called a “lady bird deed” that she could have used (it is too late for her now). It would have been recorded and would have transferred title without all these problems. She should not have tried to do this on her own with a form. She could have avoided these legal troubles by consulting with a Certified Elder Law Attorney.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, March 18, 2011


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