DEED FAQ


  1. What if my name has changed and is different than on the previous deed?

  2. Which deed should I use for a spousal transfer (between Husband and Wife)?

  3. How do I transfer between owners?

  4. Which deed to use for a divorce and transferring full ownership to one party (divorced / divorcing couples).

  5. How to add or remove someone (spouse, child, etc.) from a deed?

  6. How do I modify a form for multiple (more than 2) Grantors or Grantees?

  7. How can I give unequal shares of the property to the grantees?

  8. What information is needed to complete a deed and where do I get it?

  9. The property is located in a different state.  Which state's deed should be used?

  10. Does a deed require a witness?

  11. What do I do with the deed after it is signed (executed) and notarized (where do I file)?

  12. Is a "Deed of Trust" a type of property deed?

  13. What is joint tenancy with rights of survivorship?
           (Should I use a quit claim deed to add a person or end a joint tenancy arrangement?)


  14. What is tenancy by the entirety?

  15. What is tenancy in common?

  16. What is the difference between a quit claim, special warranty and general warranty deed?

 

Q:  What if my name has changed and is different than on the previous deed?  [back to top]
 

A. This usually happens when a woman divorces and retakes her maiden name or remarries. There is an accepted solution and we include a copy/paste clause and completed example in each two individual as grantor (seller) kit to address this situation.

 

Q:  Which deed should I use for a spousal transfer (between Husband and Wife)?  [back to top]
 

A.  For a husband or wife giving his/her interest to the other, use theTwo Individuals to One Individual form. Both parties will be Grantors (sellers) and the party that will retain ownership will be the Grantee.

 

Q:  How do I transfer between owners?  [back to top]
 

A.  Though the individual to individual form may be used, chain of title is better preserved if all owners execute the deed.  Therefore, if there are two (2) owners, the two individuals as grantor (seller) configuration is suggested. If the needed configuration is not available, see How to modify a form for multiple (more than 2) Grantors or Grantees or contact us for preparation of the needed form.

 

Q:  Which deed to use for a divorce and transferring full ownership to one party (divorced / divorcing couples)?  [back to top]
 

A.  For a divorced or divorcing couple giving the full interest to one of the parties, use theTwo Individuals to One Individual form. Both parties will be Grantors (sellers) and the party that will retain ownership will be the Grantee.

 

Q:  How to add or remove someone (spouse, child, etc.) from a deed?  [back to top]
 

A. 
To add a person as an owner simply execute a deed that lists all present owners as grantors and includes all present owners plus the new person as grantees. For example: Let's assume John Doe and Jane Public are present owners who wish to add Bill Smith.  John Doe and Jane Public would be grantors and John Doe, Jane Public and Bill Smith would be grantees. The configuration needed would be Two Individuals to Three Individuals. To achieve this configuration you could simply use the Two Individuals to Two Individuals form and make a simple modification for an additional grantee or contact us to make the modification for you. 

To remove a person from a deed, execute a deed that lists all present owners as grantors and lists all present owners minus the person being removed as grantees.  For example: Let's assume John Doe and Jane Public are present owners and they wish to remove Jane Public from the deed. Both John Doe and Jane Public would be grantors and John Doe would be the grantee. The configuration needed would be Two Individuals to Individual. If the configuration needed is not available, you may either modify an existing configuration to add grantors or grantees or contact us to make the modification for you. Note: it is important to note that a person can only be deleted from a deed with their approval, i.e., they must execute the deed (sign and have their signature notarized).

 

Q:   How do I modify a form for multiple (more than 2) Grantors or Grantees?
 

A. Modifying for multiple Grantors or Grantees is simply a matter of copying and pasting sections for additional information.

The following is an example of a two Individuals to two Individuals configuration (two Individuals as Grantors to two Individuals as Grantees):

 

THIS QUITCLAIM DEED, executed this _____ day of _________________, 20_____, by ________________ and ________________, Grantors, to ________________ and _______________, Grantees .......


 

To modify for 3 individuals, either Grantor or Grantee (applies to both) simply add "and ______________" for each desired addition. The following would result in three individuals to three individuals.

 

 

THIS QUITCLAIM DEED, executed this _____ day of _________________, 20_____, by ________________ and ________________ and ________________, Grantors, to ________________ and _______________ and ________________, Grantees .......

 

 

Note: for each additional grantor you must copy / paste an additional signature area and notary attestation section.

 

Q:  How can I give unequal shares of the property to the grantees?  [back to top]
 

A. In order to divide the interest in the property between grantees, modify the deed to identify each grantees resulting undivided interest. In the following example, John Doe will have one-fourth undivided share, Jane Doe will have an undivided one-half share and John Public will have an undivided one-fourth share. Notice that the total interest must equal 100%.

 

  THIS QUITCLAIM DEED, executed this _____ day of _________________, 20_____, by ________________ and ________________, Grantors, to John Doe an undivided one-fourth (25%) share and Jane Doe an undivided one-half (50%) share and John Public an undivided one-fourth (25%) share, Grantees ......
   
Q:  What information is needed to complete a deed and where do I get it?  [back to top]
  A. In order to complete a deed, you will need the following information (most, if not all, of the following can be obtained from a copy of the present (most recently executed) deed.  Property deeds are public information and you may obtain a copy, if needed, from the county recorder's office.):
  1. Grantor(s): the exact name(s) of the present owner(s) of the property as it is recorded on the present deed in the county recorder's office.  You may get this information from the present deed if you have a copy.

  2. Address of Grantor: Present mailing address of each grantor (seller).

  3. Grantee(s): the name(s) of the new owner(s) as they will be listed on the deed.  NOTE: A grantor may also be a grantee on the deed.  This would be the case when simply adding a person(s) name to the title.

  4. Address of Grantee(s): present mailing address of new owner(s).

  5. Tax Identification Number: Not needed for all states.  Some states require the Tax ID# for the property be listed on the deed.  If so, you will probably find it on the present deed or you may contact the county recorder or tax assessor's office for this information.

  6. Property Description: Legal property description.  This may be obtained from the present (most recently executed) deed.  You may copy it from that (retype or use a copier to insert).  Do not confuse the legal description with the postal address of the property.  Postal addresses can and do change and thus are not definitive and lasting.  The legal property description is derived from surveyor's maps and may reference previous deeds and dates.  In any event, the county recorder will not accept a deed without a legal description.  If contained in an attachment, the grantor(s) must sign the attachment.

 

Q:  The property is located in a different state.  Which state's deed should be used?  [back to top]
 

A.  Always use a deed for the state in which the property is located, regardless of where you now reside. You can execute the deed, i.e., sign and have it notarized, in any state, however, it must be the appropriate deed for the state in which the property is located.  You may then forward to the appropriate county office in the state where property is located. Contact the appropriate county office for filing fees and procedures. The appropriate office differs between states but is usually referred to as the County Clerk's Office, Register of Deeds, County Recorder's Office, or Land Registry Office.

NOTE: You may also have signatures notarized in different states but you should contact the County Clerk's Office where the land is located to confirm they allow notarization from another state.  This may be the case if the property is presently owned by two or more individuals residing in different states.  As each Grantor signs the deed it may then be forwarded to the other Grantors (one at a time) for notarization of their signatures.  Once fully executed by all Grantors it can then be filed.

 

Q:  Does a deed require a witness?  [back to top]
 

A.  Arkansas, Georgia, Michigan, Ohio, South Carolina, and Vermont require that witnesses, in addition to a notary public, sign a deed in order for the deed to be valid. In addition, there are states in which specific counties require witnesses. Check with the local county recorder's office to inquire if witnesses are required.

 

Q:  What do I do with the deed after it is signed (executed) and notarized (where do I file)?  [back to top]
 

A. The deed should be filed at the appropriate office in the county where the property is located. The appropriate office differs between states but is usually referred to as the County Clerk's Office, Register of Deeds, County Recorder's Office, or Land Registry Office.

 

Q:  Is a "Deed of Trust" a type of property deed?  [back to top]
 

A. No.  A Deed of Trust is a document used in some states to secure a mortgage. It serves as a vehicle by which a trustee holds the land as security for the debt.

 

Q: What is joint tenancy with rights of survivorship?  [back to top]
 

A.  Any two (or more) people can own property as joint tenants with rights of survivorship. Upon the death of an owner, his/her share automatically goes to the surviving owner(s). The phrase “as joint tenants with full rights of survivorship” or similar wording (governed by state statute) must appear in the deed.  A joint tenant cannot use a last will and testament to leave his or her share of joint tenancy property to someone else. If all joint tenants die simultaneously, i.e., no owner survives any of the others, each joint tenant’s interest in the property passes by their will.

Owners may decide to change ownership of property from joint tenancy to tenancy in common in order to leave their interest to someone other than the surviving joint tenants. In most states, transfers from joint tenancy into another form of co-ownership can be done even if other joint tenants object.

Note: Do not use a quit claim deed to modify an existing joint tenancy. Use a warranty or grant deed.  Technically, since a quit claim deed merely ends (quits) whatever claim or interest you may have in the property and upon doing so the full ownership of the property would immediately vest in the remaining joint tenants by virtue of the joint tenancy arrangement. Therefore, once you quit claim, i.e., quit your claim, you would have no legal claim to the property and no further interest to convey. The deed should be modified to reflect the conveyance of the undivided interest in the property as opposed to conveying the entire property.

 

Q: What is tenancy by the entirety?   [back to top]
 

A.  This form of ownership is basically the same as joint tenancy with right of survivorship (discussed above) but is limited to married couples. The phrase “tenancy by the entirety” or “as tenants by the entirety” must appear in the deed.

 

Q: What is tenancy in common?   [back to top]
 

A.  Tenancy in Common: All owners have equal rights to the use of the property. Ownership shares may be equal, however, unequal shares may be arranged by deed or other written contract. An advantage of tenancy in common ownership is that each co-owner is free to transfer or bequeath his/her interest to anyone he/she chooses.

Tenancy in common is the most common way for unmarried people to own property together. Married couples may also utilize this form of co-ownership, but more often choose joint tenancy or tenancy by the entirety.

 

Q: What is the difference between a quit claim, special warranty and general warranty deed? [back to top]
 
Quitclaim Deed:

Quit claim deeds transfer (convey) only that interest in the property in which the grantor has title.  Please note that a quit claim deed does not guarantee or warranty good title to the property. It is perfectly legal to quit claim rights to property that you do not own. A quit claim deed transfers only the interest the seller has in the property and, if none, the buyer has effectively received nothing. Quit claims are also used to clear up questions of full title when a person has a possible but unknown claim or interest in the property. Commonly used in transfers of title or interests in title, quit claim deeds are often used between family members, divorcing spouses, or between people well-known to each other.  Grant and warranty deeds guarantee (warrant) that the grantor has full title to the property or the interest the deed states is being conveyed.

 

Warranty Deed:

With a warranty deed, the grantor (seller) makes the following guarantees to the grantee (buyer):

  1. Covenant of seisin (possession) - the grantor warrants that they have clear title to the property and the legal right to convey it.
  2. Covenant against encumbrances - the grantor warrants that the property is free of encumbrances apart from those of record or disclosed to the buyer.
  3. Covenant of quiet enjoyment - the grantor guarantees that the title is free of any defects and that grantor will defend the title against claims from any and all persons.
  4. Covenant of further assurance - the grantor promises to deliver any document or instrument necessary to perfect the title (make the title good).

 

Special Warranty:

With a special warranty deed, the grantor (seller) warrants that the premises are free from all encumbrances made by the grantor, and that the grantor, his heirs, executors, administrators and successors will warrant and defend the same to the grantee, his heirs, successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other. Please note:

  1. There is no guarantee against encumbrances that may have been present when the grantor received the property.
  2. There is no guarantee against title defects that may have been present when the grantor received the property, nor does it obligate the grantor to do anything further once the title is transferred.

 

Bargain and Sale:

Bargain and sale deeds provide no guarantee that the land being sold is free of encumbrances. It implies that the grantor has title, but not one that is necessarily free of defects.  Used mainly by banks or tax authorities that did not occupy the land or are not aware of all encumbrances attached by the previous owner, and thus do not want to guarantee against encumbrances.

 

 

   

 

 

 

 

 

 

All information contained herein is for informational purposes only. If you have any concerns regarding legal or tax matters you are advised to contact a local attorney or tax consultant.

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