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Elizabeth J. Kates, Esq.
Law Offices - Elder Law
4411 Northwest Tenth Street
( Coconut Creek )
Pompano Beach, Florida 33066

Different Kinds of Deeds
for estate planning, wills, trusts, purchases and sales


Different kinds of deeds are used in real estate purchases and sales, and estate planning.

Warranty Deed, Special Warranty Deed: A warranty deed typically is the kind of deed you get when you purchase real property in an ordinary purchase and sale transaction. A "special warranty deed" limits the warranty of the seller to undisclosed liens and encumbrances caused by the seller.

The "warranty" in the deed is a guarantee that the title is the way it was represented by the seller of the real estate. Usually when you purchase real estate in an arm's length transaction you expect that the property will be "free and clear" of all liens and encumbrances, such as mortgages. Usually you when you purchase the property, you also will buy title insurance at the closing; the insurance is an extra guarantee of the examining title company that the title is in fact as it was warranted. Sometimes there are "exceptions" to the warranty, which are set out in the deed. The title insurance company also will list exceptions to the title (this is one reason to have a lawyer representing you at the closing -- the title company lawyer is protecting the insurance company, not you).

A common and acceptable exception to the title to the property would be the lien of this year's real estate taxes, if they are not yet due and payable. Or the property might be subject to matters set forth in condominium documents that were recorded elsewhere. But you would want to know that the property was not encumbered by liens and other matters you do not intend to accept, such as several years of unpaid real estate taxes, or an IRS lien because the seller did not pay his income taxes, or a right-of-way that prevents you from building where you want to build on a lot, or a mechanic's lien because the seller did not pay for improvements he had constructed on the property, and a myriad of other possible encumbrances.

Quitclaim Deed: A "quitclaim" deed is a deed that often is given when money or other consideration is not being paid for the real property, for example, when the property or a partial interest in the property is being gifted, and the person transfering the property does not intend to guarantee any particular kind of title -- he is transferring whatever he has and only what he has. Sometimes my clients informally call this a "quick deed", referring to a quitclaim deed that transfers a life estate (see below) and is "quick" because it avoids probate.

The above two kinds of deeds broadly describe the "vehicle" used to transfer the property -- with or without warranties of title. There are variations, such as a "trustee's deed" (a deed given by a trustee), or a 'personal representative's deed" (a deed issued by the executor of an estate.) In addition to the kind of deed, there are many different ways to "hold title":

Multiple owners on a deed: When more than one person owns an interest in property, then when that property is to be sold or leased, all owners have to sign onto the transaction. For this reason, it may or may not be advisable, depending on the circumstances, for multiple property owners to exchange powers of attorney if they intend for fewer than all of them to be able to sell or otherwise deal with the property without getting everyone's signature. (There are other ways to get around this problem, such as forming a partnership, or placing the property into a trust.)

Life Estate Deed, Enhanced Life Estate Deed: A quitclaim deed frequently is used to gift an interest in real property to a beneficiary or beneficiaries that will take effect only when the current owner or owners have died. Property also can be purchased with this kind of title specified. With a life estate, the current owner owns the property "for life" and then "the remainder" of all the rest of the years the property could be owned goes to the specified beneficiaries, or "remaindermen". This kind of title can avoid the need for probate, but caution must be exercised. It may or may not be a good idea to do this, because unlike changing beneficiaries on an insurance policy, any future change in title will require the signatures and consent of all of the current and future owners. Sometimes this is desired for planning purposes, and sometimes it is not. When it is not, one option would be an "enhanced life estate" or Ladybird deed, in which the life tenant (current owner), obtains and/or retains the right to manage the real estate and to alter the remainder interest. An enhanced life estate deed may or may not be advisable. One problem is that it may not protect the beneficiaries' interest in the property from future creditors of the life tenant.

Other ways of holding title: Spouses who jointly own property typically (but not always) own the property as "tenants by the entireties".) This is a special kind of joint tenancy that has some benefits and protections for married persons. Other individuals can hold property in equal shares as joint tenants (joint tenancy with right of survivorship), which is used when the intention is that if one of the joint tenants dies, the surviving joint tenant or tenants will become the owners of the deceased joint tenant's share. If survivorship inheritance rights are not intended, or if the multiple owners own different percentage interests in the property, then the ownership can be in a "co-tenancy". There are still other ways to title real estate that are less common.

Deciding how to title real property can get complicated. For example, what happens if a remainderman is designated in a life estate deed, and the remainderman dies before the life tenant (current owner) dies? What happens if real property is owned by multiple owners who do not get along, do not all contribute their share to the upkeep, or cannot agree about whether to sell the property. What happens if one of multiple owners becomes disabled, or has personal judgments against him.

Titling real estate is not something that should be done without the advice of counsel. If a mistake is made, often the only recourse might be a lawsuit to partition the property or reform the deed, and that can be expensive, and less than completely satisfactory or not possible at all. When you get advice from an estate planning lawyer, you are not merely getting a piece of paper or a document, but the lawyer will be taking into consideration all of your goals, including your family situation, all of the possible what-ifs, and counseling you on the best way to arrange your affairs. Any experienced secretary or paralegal working at a title company can prepare a deed. But that person is not your lawyer (neither is the title company lawyer), and those individuals cannot give you advice regarding the best way to handle your estate planning, or even whether you should do part of it via titling in a deed.



Wills and Trusts
(Last Will and Testament; Pourover Will; Complex wills; Codicils; Amendments; Review Out-of-State Wills and Other Estate Planning Documents)

Revocable Living Trusts

Insurance Trusts, Irrevocable Trusts, Trust Amendments; Trust Restatements
(Special Needs Trusts, Medicaid Planning Trusts, Testamentary Trusts, Charitable)

Powers of Attorney for Property
(Durable Powers of Attorney, Military Powers of Attorney)

Medical Powers of Attorney and Advance Directives
(Health Care Surrogate or Health Care Proxy; DNR Review; Living Will)

Real Estate Deeds and Other Property Purchases, Sales, Transfers
(Quit Claim Deed, Ladybird Deed, Enhanced Life Estate Deed, Trust Deed)

Elder Law; Charitable Planning

Documents for Minors Turning 18 -- and their parents
(FERPA and HIPAA releases, Simple Wills, Durable Powers
of Attorney for School and Military, Health Care)

Family Partnerships

Domestic Partnership Issues

Asset Protection

Guardianship Issues
(Pre-need Declaration of Guardianship)

Pre-Divorce Planning, Post-Divorce Planning

Prenuptial Agreements and Cohabitation Agreements
(Premarital / Antenuptial Agreement)

Avoid Probate

Post-Mortem Planning

Probate and Trust Administration