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Pitfalls of the Quit Claim Deed

Property deeds are used to transfer ownership from one party to another. There are two basic types of property deeds in Florida: a Warranty Deed and a Quit Claim Deed. The two offer different levels of protection for the new owner with the Warranty Deed providing better protection, but many people opt to use the Quit Claim Deed to transfer property, particularly if the transfer occurs between family members.

Even with a familial connection, quit claim deeds raise many concerns and, when not executed properly, can lead to serious repercussions over the short- and long-term.

Cautions Regarding Quit Claim Deeds

Quit claim deeds do not require the property to undergo a title review or attorney review, which means there is no third-party verification that the title is free and clear of liens or that the one transferring the property title has the right to do so or if there will be tax implications for either party.

Failing to have a real estate attorney review the entire transfer process can have many different consequences for both the grantee and the grantor, such as:

  • Florida’s Homestead Tax Exemption.It is possible to lose or reduce this tax exemption when ownership changes, depending on who qualifies for the exemption, and whether the new owner or additional owner resides in the property.
  • Medicaid Eligibility.If you transfer certain assets, namely your primary residence, within five years before applying for Medicaid (known as the look back period), it may cause you to be ineligible for benefits for a period of time.
  • Documentary Stamp Taxes.Any property ownership transfer in Florida may be subject to documentary stamp tax, even if the transfer occurs between spouses.
  • Potential Liability. When you add someone to the property deed of your home, the home becomes that person’s asset, in addition to being yours. That means that if your new co-owner files bankruptcy or has a judgment filed against them by a creditor, the house is an asset that can be encumbered by their creditors.
  • Loss of Title Insurance.When a property is transferred via Quit-claim Deed, it may void the Owner’s Title Insurance Policy.
  • Probate. In order to avoid Florida probate the property must be transferred in a certain way. If it is not transferred properly, or if there are any problems with the deed itself, the property will have to go through probate.

These are just a few of the possible complications that can arise during a property transfer, even if the transfer is amicable, within a family, and no money changes hands. Although they appear to be a simple solution to a simple property transfer, quit claim deeds can be anything but simple, creating problems where there were none prior.

It is always advisable to consult a real estate attorney or estate planning attorney when real property conveyance is required. These professionals will be able to examine not only the legality of transferring the property, but can provide insights as to how the transfer might affect your tax situation and other aspects of your life.

For advice on using quit claim deeds to transfer property in Florida, contact the real estate attorneys at Overstreet Law, P.A, online or call 407.847.5151.

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When Does a Property Transfer Require Probate In Florida?

Transferring property after the death of a loved one is one of the most common issues our probate attorneys manage. After a property owner dies, the heirs, trustee, or personal representative will need to properly document the transfer of property ownership from the deceased property owner (or “decedent”) to their beneficiaries.

How a Florida property title is transferred depends on the type of property ownership held by the decedent and whether or not there was a will. Oftentimes, the property will need to go through the probate process.

Transferring Property Without Probate

Probate can generally be avoided is the property is held in the name of a trust or if the property deed shows the decedent owned the property with another person, as joint tenants with rights of survivorship or tenants by the entirety.

  • Trusts. Trusts are similar to a will in that they can dictate to whom property is to be transferred upon the trust maker’s (or Grantor’s) death. If the property was held in the name of the trust, a named trustee has the power to transfer property in accordance with the terms of the trust.
  • Joint Ownership with Survivorship Rights. If the property was held by the decedent and another person, as joint tenants with rights of survivorship, title to the property automatically passes to the surviving owner. The surviving owner will have to record a death certificate with the county’s clerk of courts, but probate is not needed.
  • Tenancy by the Entirety. This form of joint ownership is limited to married couples. In tenants by the entirety, the property is owned by the married couple as a whole, not as individual owners. Therefore, when one spouse dies, property ownership passes to the surviving spouse automatically. When a married couple purchases a home, Florida law actually presumes that they intend to own property together unless they specify otherwise.

Transferring Property Through Probate

Probate is necessary when the property owner held title individually, or with another person as tenants in common.

  • Individual Ownership. If the decedent owned the property individually, it will likely have to go through the probate process to transfer ownership to the heirs or beneficiaries.
  • With a Will. If the decedent has a Will, property is generally transferred to the named beneficiary through the probate process. The Will names a personal representative who , after being appointed by the probate court, is given authority to transfer ownership of the property in accordance with the terms of the Will..
  • Without a Will. When someone dies without a Will, they leave behind an “intestate” estate. In these cases, a personal representative will be appointed by the probate court to transfer ownership of the decedent’s property in accordance with Florida law known as intestate succession. Intestate succession determines the heirs of the decedent’s property; typically the surviving spouse, children, and/or next of kin.
  • Tenants in Common. If the decedent owned property with another person, other than their spouse, it is presumed they are tenants in common. Tenants in common each own an equal share of the property. The Decedents share of the property would be transferred to their heirs or beneficiaries through the probate process.

Keep in mind that state law dictates how property can be transferred. If you aren’t a Florida resident, the requirements may be different.

Meet With A Probate Attorney To Review Property Status

If you are uncertain about how to transfer property in Florida after the death of a loved one, contact one of our probate attorneys for advice consultation. A probate attorney can review the situation and advise you as to whether or not probate is required and guide you through the process. It is better to take a proactive approach and verify the decedent’s ownership and properly transfer their interest to the heirs or beneficiaries before trying to sell or reside in the property since documentation of the ownership transfer may be necessary.

To learn more about the probate services at Overstreet Law, P.A, contact us at 407.847.5151.

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