Real Estate Law | Deed language matters
Dear Mr. Feichthaler:
A few years ago, my father wanted to add me and my wife to the deed of his house so we would own it if he died. We went to the county clerk’s office, and I asked for a quitclaim deed, so he could transfer the property to us. He signed it with two witnesses and a notary, and it was recorded.
My dad passed away two years ago, so I thought I now had 100% ownership of the property. I have paid the property taxes and expenses of the house ever since. The property appraiser has me and my wife listed as owning 50%, and my dad’s estate holding the other 50%. Now I found someone that wants to buy it. Do I own this, and can I sell it?
Michael C.
Eric P. Feichthaler
Dear Michael:
The employees at the Lee County Clerk’s office, as well as city governments, will do the best they can to assist residents who ask for help. However, they are not attorneys, and they may not be informed about the importance of the wording of deeds. It sounds like your father deeded the property to you and your wife, and to your father as well. Unless the deed is specific that the property is owned as “joint tenants with rights of survivorship”, or similar language, the transfer gave you and your wife 50%, and your father retained 50%, as separate interests. The result may be that your interests were completely separate, so if one died, the law will look to the heirs of the deceased to determine who is the owner. This determination of who is entitled to your father’s share occurs through a legal proceeding, probate, which will cost money and time I am sure you did not expect.
It is unfortunate, given that you and your father did your best to plan, only to see that the plan was ineffective. Also, since this transfer was made, you will not have a “step-up” in basis, meaning you now may have an income tax liability when selling the property that you otherwise would not have. Sales and transfers of real estate can have varying levels of complexity. In this case, speaking with a professional regarding your plan could have saved you a lot of time and money. The probate should take less than 60 says in a situation like this, and when complete, his heirs will be in title of the 50% share. If he left no will, all lineal descendants will likely share in the 50%, which may or may not have been your father’s intent.
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Eric P. Feichthaler has lived in Cape Coral for over 35 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Cape Coral to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, and Cape Coral Kiwanis. He has been married to his wife, Mary, for 22 years, and they have four children. He earned his board certification in Real Estate Law from the Florida Bar, and primarily practices in real estate law and wills and trusts. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator. He can be reached at eric@capecoralattorney.com or 239-542-4733.
This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.