Common property deeds
Selecting the correct property deed to use for each situation is not always straightforward or clear-cut.
Enlisting the legal counsel of a Texas licensed attorney Board Certified by the Texas Board of Legal Specialization in Residential Real Estate Law is the safest way to make certain your interests are protected.
A specialized attorney has years of experience in drafting real estate deeds. Having an attorney prepare your deed provides excellent value for your dollar. Deeds are prepared same day and most deeds are $195.
QUIT CLAIM (QUICK CLAIM) DEED
A quit claim deed may misspelled and/or mispronounced as quick claim deed. They are, in fact, the same deed. Most correctly, they are referred to as Quitclaim.
Basically, a quitclaim gives no warranty of title. It is used to show that the party signing the document is not making any claims to the property. He or she is “quit claiming” the property.
When used appropriately, quitclaims are used to give up or relinquish any claims or interest in a property. Unlike other deeds, this “deed” does not actually transfer title.
Good to know: A quitclaim does not contain any warranty or covenants of title. Title companies in Texas will not insure title without warranty.
Quitclaims are primarily used between people who know each other. Typically, a quitclaim in Texas does not involve exchange of money.
Keep in mind: A verbal agreement to transfer property between family members is NOT an official transfer and is not legally valid. A transfer of title deed is needed.
When possible, we recommend the use of warranty deeds to transfer property title. However, quit claim deeds might be a stepping stone to a warranty deed.
Deeds to transfer property title
Warranty deeds are the basic staple of real estate property transfers.
These deeds transfer property from one person or entity to another. Depending on which warranty deed is used, the deed contains a full or limited warranty of title.
As warranty deeds warrant or guaranty clear title to the buyer of real property, these documents provide a buyer the most protection.
When using a warranty deed:
- The seller (grantor) conveys ownership rights to the property to the buyer (grantee) for a consideration, usually cash. It may also be a gift.
- By signing a warranty deed, the seller is promising that the property title is free and clear of any undisclosed claims.
GENERAL WARRANTY DEED
A general warranty deed is the gold standard of deeds and is the most common deed used in real estate transactions.
This deed conveys full rights of ownership and disposal to the buyer and provides the buyer with the most protection.
The seller warrants or guarantees that he or she is the rightful owner of the property and that he or she has the legal right to transfer title of the property.
The seller further pledges that there are no undisclosed encumbrances against the property and that there is not any pending legal actions or other title issues.
Note: The General Warranty Deed guarantees an “unbroken chain” of title.
SPECIAL WARRANTY DEED
The special warranty deed guarantees the seller who currently owns the property has not faced any title issues during the time of his or her ownership of the property.
Restrictions of special warranty deed
- Seller warrants title from the time he or she acquired ownership.
- Seller is bound to defend against undisclosed defects that occurred during his or her time of ownership of the property.
- Seller guarantees a buyer will not be subject to legal action or title issues ensuing from the current seller’s ownership of the property.
Note: If you are unsure of the history of the property, you should avoid a special warranty deed. We recommend using the general warranty deed when possible.
DEED WITHOUT WARRANTY
This deed is a conveyance of property without any title warranties, expressed or implied. The seller is not bound to defend against any title defect no matter when it may have occurred.
Sometimes a seller might only enter into the conveyance on condition that:
- He or she has no liability for doing so.
- Buyer assumes the risk of this uncertainty
A deed without warranty is considered a lower form of deed but, nonetheless, it may be effective in transferring title.
Note: It is not recommend to obtain property unless you also are able to obtain title insurance.
More property title deeds:
LIFE ESTATE DEED
A life estate deed transfers ownership of real property into two separate interests. These two interests become the true owners of the property but each have separate rights of possession.
The two interests created by this type of deed are:
- The life estate interest. This is the “life tenant”
- The remainder interest. This is the “remainderman”
One of the primary reasons and benefits for transferring property with a life estate deed might be to avoid probate.
Points about Life Estate Deeds:
- It removes the property from the life tenant’s estate transferring property upon life tenant’s death. This eliminates the property from probate.
- Once this deed is created, the life tenant usually CANNOT make changes to title of the property without the consent of the remainderman unless the deed states differently.
- Both parties hold title at the same time. Life tenant has current possession. Remainderman gains possession when life tenant dies.
- In many cases, the transfer is not considered a gift and thus is not subject to gift tax.
- Life tenant should maintain the property and pay the taxes and insurance.
- Avoiding probate, title may be cleared quickly. Some states may require a death certificate to be recorded with the register of deeds office in the county where the property is located.
Generally, if you anticipate that you would like to create a life estate, it is better to do so sooner rather than later. Contact us for more advice of the benefits of a life estate deed.
LADY BIRD DEED
A lady bird deed is a special type of life estate deed. The lady bird deed is sometimes known as an “enhanced life estate deed”.
Differing from the life estate deed, the lady bird deed DOES give grantor the option to change the grantee without their consent. The grantor also retains the right to sell or mortgage the property.
The owner who creates a ladybird deed transfers their own real property to themselves for their lifetime and becomes known as a “life tenant”.
- The life tenant is also known as the grantor.
- This transfer creates a life estate.
- The grantor names a beneficiary who becomes the “remainderman”.
- The remainderman is also known as the grantee.
- Grantor can name one or more people, trusts or organizations as grantee.
Upon the life tenant’s death, the property then transfers to the remainderman without the need for probate.
Points about Lady Bird Deeds
- A lady bird deed gives the life tenant complete control and the right to use the property in any legal way they chose during his or her lifetime.
- Life tenant may decide to change the remainderman at any time without consent from the original remainderman.
- Life tenant may sell or mortgage the property without the consent of the remainderman.
- As control is retained by the life tenant, this transfer is considered an incomplete gift for tax purposes.
- As the property transfers by deed to the remainderman upon death of the life tenant, it does not require probate.
- This deed protects the homestead status of the property.
- A lady bird deed should not affect the life tenants ability to qualify for medicaid.
Note: This information is not intended as tax advice. Please consult a CPA or a tax advisor for tax questions.
Further Real Estate Deeds
Read about: Transfer on Death Deed
There are additional real estate deeds in Texas. Your situation may require a more specialized deed than the ones mentioned above to meet your specific needs. Our law firm will protect your interests by ensuring you have the correct deed.
Do you have questions about which deed is appropriate for your situation? Call and speak directly with attorney Scott Steinbach. 972-960-1850.
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