When estate and probate attorney Samantha J. Fitzgerald helps individuals navigate the complex and complicated areas of estate and probate law, she guides them in deciding which is the best way to distribute their property to their heirs.
While the attorneys at SJF Law Group use a variety of tools to assist their clients, when it comes to transferring real property, there is only one document that will get the job done: a deed.
But which one?
Because, you see, there are many types of deeds.
And deciding which type of deed to use isn’t always easy.
It all depends on the circumstances and what property interest the grantor (i.e., person making the transfer) wants to convey.
Each type of deed conveys a different interest in real property. Thus, which deed any particular client needs depends on the situation and the interest to be conveyed.
Which is why it is important to understand what the different types of deeds are and to work with an experienced probate lawyer to make sure your estate plan fits your needs and does what you want it to do.
So, let’s take a look at the various types of deeds in Florida and how they can be used to convey title to real property to a decedent’s heirs.
Deeds—Just the Basics.
Before we jump into describing the different types of deeds, let’s begin with a basic understanding of what a deed is and what it does.
A deed is the legal document that transfers ownership of real property from one person to another.
It is the document that you need if you want to buy, sell, or transfer real property to someone else.
Keep in mind that the deed itself is just a means of conveying real property—it is not “title,” and it does not create title in real property.
Title refers to the legal ownership rights a person has in property (whether real or personal). Although the deed will reflect the title, title is not created by a deed. Rather, the deed is the instrument used to convey title from one owner to another. The deed can only convey whatever title the grantor has: for example, a fee interest or a life estate, or no title at all.
In Florida, regardless of the type of deed used, to be valid, the deed must be in writing, properly executed, delivered to the grantee, and accepted by him/her.
Among other things, a deed must also:
- Identify the grantor and grantee
- contain a description of the property being conveyed, and
- use words of conveyance (such as “convey,” “transfer,” and the like).
Now that we have a basic understanding of deeds, let’s look at them a bit more closely.
Why Are There Different Types of Deeds?
The first thing to understand is that there are several different types of deeds.
Why?
Because, as noted above, a deed transfers ownership of property. Since there are different ownership rights in property (for purposes of this post, we are referring to real property), there are different types of deeds.
For example, you could own fee simple rights in property.
Or you could have a life estate interest.
Real property can also be owned as joint tenants, or as tenants in common.
The type of deed used to convey an interest in real property is important because certain deeds provide specific assurances and guarantees as to title, while others do not.
Four Different Types of Deeds in Florida
In Florida, there are four common types of deeds, and several variations (i.e., “specialty” deeds”) based on the four common deeds.
The most common types of deeds in Florida are:
1. General warranty deeds
2. Special warranty deeds
3. Fee simple deeds
4. Quitclaim deeds
Florida Law and Two Types of Warranty Deeds
By far the most important type of deed is the “warranty deed.”
There are two types of warranty deeds — general and special.
Whether a deed is a warranty deed is significant because a warranty deed (whether general or special) provides certain assurances with regard to title that other deeds do not provide.
Warranty deeds “warrant” (or guarantee) title to property, thus they must meet specific legal requirements in Florida.
1. General Warranty Deed
The most common warranty deed used in real estate transfers is the general warranty deed.
This deed conveys “fee simple” (as do all of the deeds except the Quitclaim deed).
Importantly, however, it also conveys certain covenants or “warranties” of title with the property.
A “covenant” is a promise that certain facts are true. A “warranty” is a guaranty (in this case made by the grantor) that is legally enforceable. The covenants made in the general warranty deed legally bind the grantor. Plus, they extend back to the origin of the property. This means that if there is a problem with one of the covenants (or guarantees), each grantor of a general warranty deed in the title chain would be liable for those title problems.
The five covenants of title contained in a general warranty deed are the:
1. Covenant of seisin
2. Covenant of the right to convey
3. Covenant of quiet enjoyment
4. Covenant against encumbrances
5. Covenant of general warranty
A “general” warranty deed gives a full warranty of title and thus provides the grantee the most protection.
2. Special Warranty Deed
The second type of warranty deed is a “special warranty deed.”
Like the general warranty deed, a special warranty deed contains all five covenants of title and “warrants” good title.
The difference is that the guarantees made in a special warranty deed only extend to the time that the grantor owned the property. They do not warrant good title for any time other than the time during which the current grantor owned the property.
Thus, the covenants in a special warranty deed are far more limited than those provided in a general warranty.
The limited timeframe for the covenants made in a special warranty deed render it not as good as a general warranty deed.
Other Types of Deeds
1. Fee Simple Deed
Another type of deed that conveys fee simple title to real property is the fee simple deed.
Although this deed does convey full title to the property, unlike a general warranty deed or the special warranty deed, it does not contain any warranties or covenants at all. All this deed does, then, is to convey fee simple title.
2. Quitclaim Deed
Perhaps the riskiest deed to receive is the quitclaim deed. This is because a quitclaim deed contains no guarantees or warranties at all.
Basically, this deed releases and transfers any interest that the grantor may have in the property. Essentially, the grantor is asserting that he or she is “quitting” on any claim he or she may have to the property. The grantor does not warrant or guarantee that he is actually conveying any ownership rights at all to the property however, if it turns out he does actually have an interest in the property, whatever he has is conveyed to the grantee.
So, a quitclaim deed simply conveys whatever interest the grantor may have in the property.
Understanding the different types of deeds and how to properly use them in estate planning is complicated. If you have questions or need to know which deed is right for your estate plan, consult with the experienced attorneys at the Law Offices of Samantha J. Fitzgerald.
Protecting Your Family is Just a Phone Call Away.
Estate planning requires careful consideration and the proper use of deeds when there is real estate to be transferred. If you are thinking of making a transfer of Florida real estate as part of your estate planning, call us. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. When you work with the estate planning attorneys at SJF Law Group, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today