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from Lifestyles After 50 Lake Edition, December 2022

by Lifestyles After 50 Magazine

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QUITCLAIM DEED NOT ALWAYS BEST CHOICE

by William R. Mumbauer - Attorney - www.flwillstrustsprobate.com

A reader asks: I asked my attorney to prepare a Quitclaim Deed to transfer a small lot I own to my daughter. However, my attorney told me that I needed a different type of deed. Is he correct?

Answer: Yes.

First, your attorney is absolutely correct in having misgivings about preparing a Quitclaim Deed. Although Florida Appellate Courts have unanimously ruled that a Quitclaim Deed will effectively convey, or transfer, an interest in real property, it is not the appropriate choice in your situation. This is because although a Quitclaim Deed does, indeed, convey title, the maker of a Quitclaim Deed is not professing that the title being transferred is valid. A Quitclaim Deed should only be used in those rare instances when a deed is necessary to clear a cloud on the title, but not necessarily to convey any legal interest.

As an example, suppose a title examination in anticipation of a sale of real property discloses that for whatever reason you may have some interest, or “claim”, in certain real property, but you know that you actually don’t have any such interest. In a case like this, it would be entirely inappropriate to sign a deed purporting to convey a legal interest in real property when you know no such interest actually exists. This is where a Quitclaim Deed comes in handy because a Quitclaim Deed does not purport to convey a legal interest in real property, but only to disclaim such an interest, should an interest happen to exist.

Mr. Mumbauer, a 5th generation Floridian, has maintained a law practice in Brandon, Florida since 1980 with emphasis on estate planning. Mr. Mumbauer takes special pride in representing the senior community by maintaining a sensitive and practical approach to problem solving. Mr. Mumbauer is a member of the National Academy of Elder Law Attorneys and the Elder Law Section of the Florida Bar. Mr. Mumbauer is also a Mentor in probate law and has been qualified by the Second District Court of Appeal in Florida as an expert witness in matters involving the drafting of Wills. Mr. Mumbauer’s Martindale-Hubbell Peer Review Rating among judges and lawyers for Legal Ability is High to Very High and his General Recommendation Rating is Very High. His articles are based on general principles of law and are not intended to apply to individual circumstances.