Questions and Professional Answers

• Can a Quitclaim be stopped? IRS still be able to lien?

  Our mothers estate is going into 4 names from her trust, one sibling will probably file a quitclaim as she owes the IRS money. Can we stop the quitclaim? If the quitclaim is filed will the IRS still be able to lien this property on her portion only?

  • Re: Can a Quitclaim be stopped? IRS still be able to lien?

    A Quitclaim Deed is a deed which transfers ownership of real property from one person to another. If one of the siblings is "quitclaiming" her interest in real property (real estate) to another person, the remaining siblings cannot prevent that, since anyone who owns property is free to gift it to whomever they wish.However, in the context of your question, you may be talking about a "disclaimer" of a portion of your mother's estate, which may include personal property as well as real property. A disclaimer may be filed with the court by one of the siblings, which would have the effect of telling the court that she does not want to own her share of the property of the estate.If the sibling is quitclaiming real property to someone, the remaining siblings will be co-owners of the real property with that person. If the sibling is filing a disclaimer of her portion of the estate, her portion will be split up between the remaining beneficiaries of the estate.

    Roy Hoffman
    Law Offices of Roy A. Hoffman

  • Re: Can a Quitclaim be stopped? IRS still be able to lien?

    You might be better off asking this question under a LawGuru heading relating to trusts, estates or probate matters than under the real estate heading. Even though it concerns real property, the essence of it has to do with the taxation of estates, I think.In any case, here's an attempt at an answer.An heir, like your sister, can reject (techincally, "disclaim") a testamentary gift, whether received by will or by trust. Why would an heir disclaim a gift? Among the possible reasons: (a) it might be a piece of real estate with environmental liabilities attached to it. (b) it might be stock in a family business where there are no profits and no market for the stock, but lots of management headaches. And so on. Often, heirs refuse gifts for tax reasons, too.However, in my opinion, if the sister deeds away the property (whether by quitclaim or any other kind of deed or instrument where she is the grantor), she will be treated by the IRS as though she inherited the property and then immediately disposed of it; i.e. she will NOT have accomplished her apparent purpose of disclaiming and thus never having owned the 1/4 interest.Rather than deed away the 1/4 interest, the sister must take positive steps to refuse to inherit the property. Disclaimer must usually be accomplished within nine months of the time the interest arises.There are statutory requirements to disclaim gifts; see Probate Code sections 260 through 295, especially sections 275, 278, 279 and 280. The disclaimer must be in writing, identify the donor, the disclaiming party, and the gift being disclaimed. The disclaimer must be filed with a superior court, the trustee, a person with custody of the gift, etc. (see 280).A disclaimed gift is thereafter treated as though the intended heir had predeceased the testator, i.e. it goes back into the estate and (generally) gets redistributed as part of the residuum (the part of an estate not specifically given to a particular heir). Possibly then the other three siblings would end up with 1/3 each.If the sister fails to disclaim, but instead in effect accepts the gift by giving someone a deed to it, she'll be treated as having accepted it and all the tax consequences of that will automatically ensue.The other three siblings don't have any obvious way to "stop" sister from deeding away her property. It's only a 1/4 interest, of course, but it's freely marketable. You could end up with a nuisance co-owner and may have to sue for partition.Yes the IRS can pursue a lien on sister's 1/4 interest (if the buyer or donee is in cahoots with her in any way, or it even looks suspicious) and/or any money she receives from selling it. The other 3/4 should be safe.

    Bryan Whipple
    Bryan R. R. Whipple, Attorney at Law

• Quitclaim Forgery

  When an heir takes over property of deceased brother who died without a will, by using a forged signature on a quitclaim deed. This quitclaim was witnesses by the mother of his child who was the notary public for that quitclaim signature. What action to take?

  • Re: Quitclaim Forgery

    You will need to file an action in court to have a determination made as to the authenticity of the deed. The first thing to do is to consult with an attorney (real estate) who can discuss the situation with you and give you specific advice on how to proceed.Good luck to you.

    Cyndi Perez Trostin
    Cyndi Perez Trostin

• Quitclaim deed consideration

  My father, a widower, added my name to his deed. We used a quitclaim deed to change the names on the property. We have to file a corrected quitclaim deed because it did not state joint tenants with right of survivorship. There is no mortgage or any other liens. On the new, corrected quitclaim deed under consideration can we put for zero dollars or does there have to be an amount like one dollar or ten dollars? The first quitclaim deed replaced a bargain and sale deed. On the first quitclaim we put zero dollars. If this is wrong do we also have to state this error in the correction statement on the new quitclaim deed like we stated the reason of survivorship rights on the corrected deed? When we sign the new quitclaim we are the first parties and the second parties. We each have to sign it twice. Should we title each signature with grantor/grantee or something like that, or is the names listed twice enough?Thank you.

  • Re: Quitclaim deed consideration

    Thye new Deed can recite no consideration, although I usually show it as being One Dollar. It is given by the 2 names (as listed in the first quit claim Deed) as Grantors, to the same people as Grantees, but listing them as joint tenants with right of survivorship. It can also simply state that it is a corrective Deed being recorded to merely clarify that the ownership was to have been as JTWROS in the prior Deed. It need only be signed by the Grantors, and then recorded.

    Walter LeVine
    Walter D. LeVine, P. A.

  • Re: Quitclaim deed consideration

    It's a good thing you did not try to do brain surgery on your own.A transfer of real property requires a stated consideration.Usually a deed will state "For ten dollars and other good and valuable consideration"Why did you decide to use a quitclaim deed?If your dad had title insurance on his property and you want to continue that without paying a new premium, you should use a Warranty Deed.Why don't you consult a competent real estate attorney. The fee is insignificant compared to the value of the property you are placing at risk.

    Arnold Nager
    Arnold H. Nager, Esquire

• quitclaim deed

  If a quitclaim deed is singed from a father to a son after the mothers death can the father have the quitclaim revoked after he remarries and has been remarried for 15 months by saying that when he singed the quitclaim deed over to the son he was in a state of deep depresion

  • Re: quitclaim deed

    He can sue to have the deed revoked, but he must prove that he was unduly influenced by clear and convincing evidence. It's a tough burden.

    Frank Rozanc
    Frank J. Rozanc, Esq.

• quitclaim deeds + name change

  My grandmother is selling her house to us and doing a quitclaim deed. My question is this:She had one name when her quitcalim was done, and now she has remarried and has a new name. Which name goes on the quitclaim to be legal?Like this : new name (aka old name) or old name (aka new name)2nd question: which name does she sign? New name? and under the line how is it printed?_______________________________________new name (aka old name) or old name (aka new name)Thanks for you helpChele'

  • Re: quitclaim deeds + name change

    I would do it as New name (fka old name) and sign it with the new name only and print underneath New name (fka old name). FKA is "formerly known as". You may want to ask for a General Warranty Deed rather than a Quit Claim Deed. I would recommend title insurance or a title search depending what is prevalent in your area. Also, your grandmother's husband has to sign the new deed to release dower.

    James Flaherty
    James G. Flaherty Co., L.P.A.

• Quitclaim Deed

  Quitclaim Deed needs to be signed and recorded., four years after final Judgment was entered. Ex-wife went back to maiden name, pursuant to Court Order. Does Quitclaim Deed need to show Sue Smith AKA Sue Jones in order to sign and have Quitclaim Deed notarized to comply with the orginal recorded Deed ?

  • Re: Quitclaim Deed

    Dear Inquirer:Nothing herein shall create an attorney-client relationship, unless a written retainer agreement is executed by the attorney and client. This communication contains general information only. Nothing herein shall constitute an attorney-client communication nor legal advice. There likely are deadlines and time-limits associated with your case; you should contact an attorney of your choice for legal advice specific to your personal situation, at once.If you haven't already done so, please visit my web site at -- http://home.pacbell.net/edbjr/ ORhttp://www.CaliforniaDivorceAttorney.com The site contains quite a bit of general information about California Family Law, Tenants' Rights, and Juvenile Dependencies, and EDD hearings and appeals, as well as information about me (education, experience, et cetera) and my office (location, hours, fees, policies). NOW, IN RESPONSE TO YOUR INQUIRY --The facts that you have provided are not clear enough and/or complete enough to provide a definitive answer to you inquiry; however, I wouldsay: If this is a transfer to one of the parties incident to the dissolution of their marriage, you probably should be using an interspousal transfer deed. One may use any name one wishes to use as long as there is no fraudulent intent or action. I would suggest that she sign first with the name as it is on the deed, then with her present name.Thanks for sharing your interesting inquiry with us on LawGuru, and good luck with your case.

    E. Daniel Bors Jr.
    Attorney & Counselor At Law

• Quitclaim deed during divorce

  I am giong through a divorce. I live in VA and my wife lives in PA now. She signed a quitclaim deed approximately one year ago. The quitclaim has been registered with the court house.The deed is fully in my name and also the mortgage. She has recently filed and stated marital proprety (ie the house).Can she file the house as matrital property after she singed the quitclaim deed?

  • Re: Quitclaim deed during divorce

    She can file whatever she wants but she already gave the house away. She has no ownership interest.

    Fred Kaufman
    Fredrick S. Kaufman, Esquire

  • Re: Quitclaim deed during divorce

    The question I have is why did she give up her property rights in the house? If it was part of plan to divide property by agreement rather than court decree, not an uncommon occurance. Now if she wishes to challenge the transfer she has the burden of showing fraud or undue influence. Is the divorce being filed in Pennsylvania or Virginia? That can make a difference. In Pennsylvania the court sits as a court of equity, that is to say it looks at the facts and law and tries for a fair result. So judges have a fair amount of leeway in coming to decisions. So the facts are what tends to control. {John}

    John Davidson
    Law Office of John A. Davidson

• Quitclaim deeds

  If I quitclaim my half over to the joint owner releasing me of the liability of the property why is the mortgage loan still in my name. When I called the mortgage company they state that I'm still liable for this property and just because I quitclaim the property I'm still responsible for the loan. Is this true? I thought when quitclaim that my name would be taken off the deed of trust besides off the mortgage loan.

  • Re: Quitclaim deeds

    A quitclaim takes you off of ownership of the property, but does not relieve you of liability for the loan.Reverse the situation for a minute. If you sold a house to two people, based on the credit of both, would you want one person to decide on his own that he didn't owe you any money anymore?What you are looking for is called a novation, which is where the lender agrees to look to only one party to pay. This is a decision the lender must make, not you.Your problem is that now, although you are liable for the loan, you don't have an ownership interest. If the person you gave the quitclaim to told you it would work this way, you may be entitled to get part ownership back.

    Ken Koenen
    Koenen & Tokunaga, P.C.

  • Re: Quitclaim deeds

    The prior answers are correct. Your name remains on the loan. Since you no longer own the collateral, a foreclosure may have little or no direct impact on you (you can't lose what you haven't got), but your credit is still affected.There is a bright side to all this. Presumably, you got something in return for quitclaiming the property, right? I mean, you didn't just give it away, did you? Here's what may happen. If there is a default on the loan, the lender will probably opt for a trustee's sale rather than a judicial foreclosure. The property will be sold to satisfy the obligation. If the proceeds are sufficient, no one can come after you. Even if there is a deficiency (i.e. the sale proceeds are insufficient to pay off the loan and related costs), the lender is most likely barred from coming after the borrowers personally under the anti-deficiency statutes. This is true if the loan was a purchase-money loan and not a refi.All the foregoing assumes your bailing out via quitclaim was not fraudulent (either in intent or in result) as to the lender. If the purpose or effect of the quitclaim is to protect assets from a creditor, the scheme can be un-done in court.There is also the question of the now-100%-owner's rights against you. You may be jointly and severally liable on the note secured by the deed of trust. Does it read "I promise" or "We promise" at the beginning? When you sold out, did the partner/buyer release you from liability on the loan, either as to principal, interest or both? Has the partner made 100% of the mortgage payments since the quitclaim? Your understanding and/or actual practices may affect your liability to indemnify the partner for any judgment against him, or for payments prior to a default.

    Bryan Whipple
    Bryan R. R. Whipple, Attorney at Law

  • Re: Quitclaim deeds

    If you sign for a loan, even if you quitclaim the underlying property it does not relieve you of the loan; in fact, transferring the property might accelerate the loan and the entire amount due in full now.JOEL SELIKATTORNEY-RE BROKER

    Joel Selik
    www.SelikLaw.com

  • Re: Quitclaim deeds

    If you deeded it over to your partner in the property that person will have to go to the mortgage company and qualify for the loan on the property on their own financial merit. If you deeded it over to someone else. Then your old partner and the new person will have to go in a requalify.

    Victor Hobbs
    Victor E. Hobbs

• the use of quitclaim deeds

  Thank you for your time. If I were to quitclaim my property to my sister for a limited time, say 60 to 90 days, would she be able to quitclaim deed the property back to me in the same manner? Also does the quitclaim deed have to be recorded in the county which the property is located to be leagal? We are both of leagal age and both of us are single.Sincerely,

  • Re: the use of quitclaim deeds

    In addition to what the other attorneys said, your transfer of the property may trigger a reassessment for property tax purposes under Proposition 13. In other words, your real estate taxes may increase a lot, depending on how long you have owned the property and how much its value has increased.

    Martin Snitow
    Martin S. Snitow Law Corporation

  • Re: the use of quitclaim deeds

    Yes, you can do this, but for what purpose?If you are doing it to avoid creditors, it would most likely be held to be for fraudulent purposes, and voidable as to the creditors. If it not recorded in the county, it will only be valid between you and your sister, and anyone else who has actual knowledge. The reason deeds are recorded is to give constructive knowledge to the world.Don't play games with creditors and deeds. Contact an attorney in your area to let them know what you are trying to accomplish, and let them help you.

    Ken Koenen
    Koenen & Tokunaga, P.C.

  • Re: the use of quitclaim deeds

    This can be done, but you should know that deeding property is making a gift (or sale), and the recipient doesn't have to deed it back.They do not have to be recorded, but the recording is essentially the only way to give the world notice that the transfer has occurred.Before you do anything, talk to an attorney about the reasons behind the transfer, because there's probably a better way to accomplish your purpose--it's also very possible that the transfer you're talking about could be considered a sham or fraudulent transfer, and would cause more problems for you.

    Chris Johnson
    Russakow Ryan Johnson

• Forced Quitclaim

  Is it possible to file a motion to the Clerk of the Court to quitclaim on behalf of someone else who refuses to do so out of spite? My boyfriend and I are about to lose our home to auction because his ex will not quitclaim her name off the house so we can refinance. We can do absolutely nothing without her quitclaiming. She's adamant that she wants our home to be taken away. Our arguement to the court would be that she is refusing just to be mean and that there is no gain in it for her to refuse. There is no equity in the house. How can we get her to quitclaim before we lose this home? We only have three months left before auction. I'd appreciate any help at all. Thank you.

  • Re: Forced Quitclaim

    Unless the Court ordered that the ex's interest in the house is transferred to the husband in the divorce decree, you will be required to return to court to have the property dealt with. If it is ordered in the Decree, filing that with the County Clerk in the County in which the property is located should do the job.If not, return to the court which granted the divorce, have the matter adjudicated, then file the resulting Order as described. Also, the Court can appoint a special master to sign a deed in place of the wife after the court decrees it.You may require the help of a domestic relations attorney to get this done.

    Charles Aspinwall
    Charles S. Aspinwall, J.D., LLC

  • Re: Forced Quitclaim

    Assuming that your boyfriend's divorce with his ex has been completed, the language in the propety distribution section of the final dissolution decree will likely control. Get out the final divorce papers and see what they ordered regarding the ownership of the house. If the decree requires the ex to sign a quit claim deed over to your boyfriend, then it should be relatively easy to get the court's assistance, via a contempt action, to complete the transaction. If the decree (or any other of the dissolution orders) are not clear on the property distribution, the process will be more involved and time consuming. In any event, you and your boyfriend should contact a competent attorney immedietely to discuss your boyfriend's best course of action. With three months to go until the auction, there is likely still time to obtain the relief you need. However, the time to act is obviously running out.If you wish to discuss this matter further, call me at 406-442-6350.

    Donald Jones
    Harrison, Loendorf, Poston & Duncan, P.C.

  • Re: Forced Quitclaim

    Look at the divorce decree and determine how the property is to be divided and if the ex was required to quit-claim her interest in the property. If so, you could file a contempt action. If she really does have an interest after the divorce (which is odd), then you can't force her to do anything with her interest. However, under the circumstances, you may be able to get a court to decide the issue equitably and broker some sort of resolution to the problem.Jeff Turner; Oliver Law Firm; 248-7577

    Phillip Oliver
    Oliver Law Firm, P.C.