Expert: liznarr - 9/1/2011

Question
QUESTION: Hello:

Please let me know what your fees and suggestions are for following situation I need to clear up as follows:

1-There was a condo purchased in 2005 I paid 60K down payment original loan and deed was put in my sisters and her husbands name and remains in their name.

2-The property was Quit Claim deeded to valid Delaware LLC immediately which has no other assets by my sister and her husband 100% of the shares of the LLC is owned by my Living Trust but I never recorded the transfer property ownership remains in my sister and her husbands name.

3-My sisters husband passed away 2008 and she never took his name of the title they have joint tenancy. Neither me or my sister is
taking any depreciation or deductions from the property.

This is where I need help and your suggestions:

4-I want the property to be transferred into my Living Trust's ownership, is it possible you can transfer the title from the LLC to my Living Trust?

5- Do you any other suggestions to transfer the title to my Living Trust?

6-What is your fee to get this done correctly.

Kind regards,
Anthony

ANSWER: Hi Anthony,

I would strongly recommend that you consult with an attorney in your area to get proper legal advice for answers to your question.  Your questions are legal in nature, and I am not qualified to give legal advice or charge for same.  I will, however, give you a suggestion below.

I am stating my assumptions below as I interpret your writing:

1.   A condo was purchased and you allowed your sister and her husband to take title as Joint Tenants, and
2.   The property was Quit Claim deeded to a valid Delaware LLC, but never recorded as a public record, and
3.   Your sister’s husband passed away in 2008.

Below are questions I would ask an attorney:

If a Quit Claim deed was never recorded, can you legally (and with your sister’s permission) void or otherwise simply discard the unrecorded deed?

If the deed was never recorded and an attorney advises you that the deed could be “torn up” or otherwise voided, would title then simply revert back to your sister and her husband as Joint Tenants?

If the answers to the above questions are “yes, and yes,” I would think that when your sister’s husband passed away—and by virtue of the fact that your sister and her husband were Joint Tenants—title to the property automatically would have passed to your sister; and she would have acquired ownership of the entire property by right of survivorship.  This is assuming that the deed as Joint Tenants was properly drawn up to begin with and that there are no other matters which would cloud the issue.

To next establish ownership in your sister’s name alone, your sister might--as the surviving individual--simply execute and record an affidavit of death.  Your sister could then deed the property to your Living Trust.  All my writing above is not intended as advice as to what might happen in your situation, but questions I would be directing to an attorney who can provide you with proper legal answers and advice.

Good luck to you, and I hope you will be able to accomplish what you want to do.  If you have additional real estate questions, please don’t hesitate to write again.

Regards,
Elizabeth

---------- FOLLOW-UP ----------

QUESTION: Dear Elizabeth:

Since the Quite Claim Deed was already signed by both my sister and her husband to an LLC why can't I simply transfer the condo to the LLC and than Quit Claim it to my Living Trust Concurrently.

Out of all the experts you seem to have the best answer as well as knowledge.

Kind regards,
Anthony

Answer
Hi Anthony,

I do not know what, or if there would be any, legal implications involved with a deed having been executed by a grantor (your sister’s husband) which was never recorded, and then being recorded AFTER the grantor’s death.  This is where you need legal advice.  

I have never had a situation like this before, and even if I “thought” I knew the answer, I cannot advise you on a legal matter.

I see where you are headed, that by simply connecting the dots to get to the finish line, it might “seem” that what you are still asking is a logical thing to do.  And it might be that an attorney in your area will tell you this is perfectly legal; I just do not know.  However, if it were NOT legal, you do not want to do anything now that could come back and give you problems later.  Better safe than sorry.

What I question is the legality of recording a deed AFTER death (with some obvious longer-than-usual period of time passing after death and before the deed is recorded) and whether or not anyone could ever legally challenge that.  

In the absence of the deed which was Quit Claimed to your sister, your sister’s husband’s interest in the condo would have automatically passed to your sister as the surviving joint tenant.  In a case such as this, your sister would be free to convey the deed however she wanted.  

I’m giving you my best advice, and that is still to ask an attorney to make sure that what you think you should be able to do is within legal boundaries, with no adverse complications to come back on you later.  What appears logical is not always legal.

Let me know what your outcome is.
Regards,
Elizabeth