If I were to list the top legal self-help blunders that clients end up regretting, near the top of the list would be recording real property deeds without consulting an attorney to add or remove a family member’s name from the property’s title. While I understand why someone might want to do this, the fact is that recording a defective deed that does not meet deed recording requirements will cause that deed to be unknowingly voided and result in several unintended title ownership consequences. While the short-term motivation may be to keep the property in the family and save a few bucks in legal fees, the long-term consequences can be costly to fix if family members from different generations end up co-owning the property in an unintended business partnership which may deteriorate family harmony in the long run if family members have to mediate a co-owner dispute, negotiate with a co-owner’s judgment creditor or probate a partial interest in the inherited property after a co-owner’s death.
The Problem With Owning Real Property in the Name of Individual Persons
Real estate ownership can take several forms and each with different implications regarding legal owner rights and ability to transfer ownership at time of sale or upon death. While each form of legal ownership has its advantages and disadvantages, the most common form of ownership for holding real property title is in fee simple, i.e. sole unconditional individual ownership. Unlike joint tenancy held by multiple persons or tenants by the entireties held with a spouse, individual fee simple ownership allows the owner to sell, convey, mortgage, or lien the property without the required consent and cooperation of another person.
The primary advantage of fee simple ownership is that a sole owner can accomplish any transaction involving the property without consulting or working with another person. The obvious disadvantage that is often overlooked is the potential for interruptions in control of the property should the sole owner marry, die or become incapacitated. If a sole owner of real property dies, the transfer of title to the property will require probate court approval to update title in the name of any legal heirs before it is otherwise refinanced or sold. If the sole owner dies in a different state or country than where the property is located, the property title may possibly not be updated until the property is probated in two jurisdictions, i.e. probate in the deceased owners state of residence (domiciliary administration) followed by a second probate in the state where the property is located (ancillary administration).
The Problem With Self-Prepared Deeds Adding Loved Ones to Title
Fee simple title ownership of real estate in Florida is recorded with and tracked by the County Recorder’s Office in the county where the property is sited. For this reason, real estate owners are readily identifiable in public records and anyone can locate copies of prior recorded deeds conveying title of the current and prior property owners. Ordering a basic title search will unearth details about issues with the prior recorded deeds and uninsurable defects in the property’s chain of title. An effective title search is a prerequisite to closing a sale of property since it will uncover all title defects to be corrected to ensure the buyer of the property is acquiring clear and insurable title that cannot be jeopardized by claims of subsequent purchasers or their legal heirs.
Because anyone can self-prepare and self-record a deed in the public records, quite often deeds are recorded with title defects unbeknownst to the transferring owner. By way of example, this happens when a deed is recorded with an incorrect marital status, without adequate signatures or with an inadequate property description. When deeds is self-recorded without a title search and attorney review, chances are the remaining owners or thier legal heirs will end up paying more to clear up title defects in order to transfer clean property title to heirs or otherwise close a timely sale of the property.
Contact Florida Probate, Trust and Estate Attorney Today
Because of the various legal ramifications and unintended consequences triggered by recording a self-prepared deed, it is advisable to consult an attorney before recording any deed changing real property title. In order to avoid causing title defects or creating gaps in the chain of title at time of deed recording, consult an attorney to discuss your planning goals, review deed considerations, assess legal liability and consider any estate planning ramifications. If you would like a schedule a telephone or ZOOM video consultation from an experienced Fort Lauderdale probate and estate attorney, please take a moment to download, complete and return the Firm’s Legacy Planning Questionnaire for our review and contact me (954) 332-2342 to review your family estate planning goals.
