Posts tagged deed

Question : What is the legality of a quit claim deed filed after the maker’s death in Florida?
The deed was signed in 2002, and left in an envelope to be opened upon his death. One FL attorney suggests that a quit claim deed filed after death is probably not valid and the property would need to go through probate; another said that would make no difference and the deed should be filed as soon as possible; and should not need to part of probate estate (Both attorneys charge by the hour so the 3% fee is not a factor.)

I would appreciate any informed opinion.

A clerk at the county court’s office said that they would accept the deed; would not know about the maker’s death, and whether the deed is valid is a “legal question” that they have nothing to do with.
There are two deeds; one for property in Florida; one for property in Maine; granting each of his two adult children and equal share in both properties. The envelop was in his safe deposit box to which he had given one child a key whose name was on the account.

Under his will both children share the estate equally; so a challenge to the deeds by a beneficiary will not happen.

A concern brought up by the first attorney is that that a title insurance co. may fail to give a clear title; or if one does now another may fail to so in the future (if they found that the maker died before recording) forcing probate some years in the future and a lawsuit for failure to provide a clear title. (He said it sounded unlikely but..)

The second attorney said the deed should be recorded immediately because if the maker had made another quit claim deed and it was recorded first; that would be the one that would be accepted (I think it is very unlikely that he did).
florida probate attorney

Best answer:

Answer by Mr Placid
It may be valid, or may not be valid.

A deed must meet several requirements to be valid. One requirement, which is implicated in your story, is that the deed must be “delivered” to the grantee. The typical argument in these cases is that because the deed was in an envelope, or in a safe deposit box, or in the hands of a third party, the deed was never “delivered” to the grantee, and thus the deed is invalid and no legal conveyance occurred.

However, there is typically a presumption of a valid delivery if the deed is either recorded, or in the possession of the grantee. Of course, the presumption is rebuttable. And, it would take some other person to raise the issue in order to rebut the presumption.

So, when would there be another person to raise the issue? In your case, the most obvious would be this: The deed grants the property to Sally, the decedent’s girlfriend. But, if there were no deed, then the property would pass to Mary by intestate succession. So, obviously Mary is going to bend over backwards to try to prove that the deed to Sally was never actually “delivered” to Sally. If Mary is able to convince a judge that the deed was never delivered, then the deed is invalid and the property would go to Mary.

This is the general rule. There are not enough facts in your question for anyone to give you a definitive opinion. For instance, where was the envelope found? Was it in a safe? If in a safe, did the grantee have access to the safe? Who had control of the envelope when grantor died? All of these facts are pertinent. Plus, the validity of the deed would be determined by a jury or judge, and they are entitled to their own interpretation of the facts. So, with a given set of facts, reasonable attorneys could differ as to the conclusion. You’ll need to consult one of your Florida attorneys to decide the most rational way to proceed.