Posted by No/ta/ry/2u on 8/2/08 4:07pm
Msg #258279

Suggestions

My fathers attorney is preparing his will, leaving beach house to my mom but wants to give a neighbor of his a small lot. Attorney wants 100.00 to prepare Special Warranty Deed, should dad just do a quit claim deed instead of paying attorney?

Reply by sue_pa on 8/2/08 4:16pm
Msg #258281

duh

Your father has sought legal counsel. Why in the world would you question the best method of disposing of his estate when he is paying someone to advise him? Why in the world do you think preparing a Special Warranty Deed would cost more than preparation of a Quit Claim Deed? Do you realize that the disposition of assets upon death may involve tax consequences and costs? Do you even know what a Quit Claim Deed is and the purpose for it? I'm guessing not or you wouldn't be asking this question.

Reply by A-1 Signing Agents, LLC on 8/2/08 5:17pm
Msg #258286

Re: duh

Always so kind.

Reply by sue_pa on 8/3/08 8:19am
Msg #258314

my post was accurate n/m

Reply by Linda_H/FL on 8/2/08 5:28pm
Msg #258287

No-brainer - Sue is right.....

why come on a notary forum looking for a second opinion about legal advice given by an attorney....

Let your father listen to his attorney.

Reply by jba/fl on 8/2/08 7:01pm
Msg #258290

Re: No-brainer - Sue is right.....

Sometimes a little knowledge is lethal...no wonder there are those who think notaries overstep their bounds.

As for you A-1, aren't you a sauce that just sits waiting to be devoured?

Reply by BrendaTx on 8/2/08 7:08pm
Msg #258292

**should dad just do a quit claim deed instead of paying attorney?**

IMHO, No.

$100 is cheap.

As I understand it, a Quitclaim Deed only provides proof that the signer claims not to have an interest in the property. It doesn't necessarily convey title properly. As I also understand it, the Special Warranty Deed will set out conveyance with exceptions to previous easements, etc. so that later down the road the Grantee would not come back and ask why it wasn't revealed before that the lot had an easement, and so forth in the property he received. It's just good business to have a lawyer do the right conveyance deed and not wing it.

It would be nice if the Grantee would pay the $100 for the deed. I'd ask him to. It is a common thing for the receiver of the property to pay for the deed--especially is a gift situation.

Reply by No/ta/ry/2u on 8/2/08 7:58pm
Msg #258301

Thank you Brenda, thats all I needed was a simple answer to my question.

Reply by Gerry_VT on 8/2/08 7:33pm
Msg #258296

No/ta/ry/2u's father should be happy he does not need a survey. (Actually, the surveyors I've talked to seem to have a fairly low opionion of lawyer's ability to spot the need for a survey.)

Reply by BrendaTx on 8/2/08 7:39pm
Msg #258297

Gerry, if it is a city lot it there is already a survey on

file in Texas which the property is in. I'm guessing. Not assuming....
:0

Reply by Gerry_VT on 8/2/08 9:00pm
Msg #258306

Re: Gerry, if it is a city lot it there is already a survey on

Surveys need to be redone from time to time. A condo I owned had all the ajoining properties to the north lose access to the survey maps because the town hall burned down, and all the land records were destroyed. On my present property, one of the trees marking my boundary is dead and gone, and a culvert called out in the deed washed away in a flood and was replaced by a bigger one.

Reply by NCLisa on 8/2/08 7:55pm
Msg #258300

Speaking as a Paralegal, I don't EVER use quitclaim deeds. There is always another form of a deed that does the job much better than a quitclaim.

Reply by sue_pa on 8/3/08 8:22am
Msg #258315

SO agree. In over 25 years of working in a law firm we used Quit Claim Deeds for one purpose and one purpose only - extinguishing the purchaser's rights in a defaulted Installment Sales Contract.

While doing 'signings' I am shocked at the number of QuitClaim Deeds I see, especially among divorcing spouses. If I were divorcing the lying/cheating/nonworking/drinking/whatever so and so, I sure would want a warranty on that deed.

Reply by MikeC/NY on 8/3/08 12:38pm
Msg #258324

"While doing 'signings' I am shocked at the number of QuitClaim Deeds I see, especially among divorcing spouses. If I were divorcing the lying/cheating/nonworking/drinking/whatever so and so, I sure would want a warranty on that deed."

Don't assume that this is the case in every divorce. Sometimes divorces are amicable and settled through mediation. In cases like that, if the parties have agreed that one will keep the property, a quit claim might be appropriate.

Reply by Linda Juenger on 8/3/08 2:23pm
Msg #258330

Your right Mike.

My daughter and husband bought a home. 2 years into the marriage the house began having major mine subsidence problems the same time the marriage was in trouble. My daughter moved out and he stayed with the house. They were able to mediate everything themselves through the divorce without going to court. Their insurance paid off their mortgage because of the mine subsidence and he took out a loan against it to pay her off. But, she did not sign the QCD until the 3 day RTC period was over. She wanted to make sure the loan went through in only his name before she would sign anything.
I think this is the way it was done, been a while. Point is, she signed the QCD to get her name off the property.
One more note, they chose to take the money and pay off the mortgage instead of using it for the needed repairs. So, bottom line, he is living in a pretty heavily damaged home. But, my daughter was able to get out from under it, get her name off it and move on. Had they stayed together, they would have had to use the money to repair the home. He is going to have a very hard time selling this home due to the damage. But, that's his problem.

Reply by sue_pa on 8/4/08 8:34am
Msg #258388

my example

probably wasn't the best. Amicable or not, settled through mutual agreement, mediation or a long drawn out trial isn't the issue. Marriage is a legal contract. Divorce is the dissolution of that contract. A deed is a contract between the parties. There is no divorce lawyer worth his fee if he feels a Quitclaim Deed is acceptable when title is held by a married couple and they use a QCD to transfer it to the other. One is paying the other for their share of the property - exactly the same as when two strangers agree to sell/purchase real estate. The spouse 'purchasing' the property should require a warranty from the 'selling spouse' for their share. Especially in today's litigous world, who knows how the selling spouse might have encumbered the title to the property (even unknowingly and unintentionally). A Quit Claim Deed very generally says that I MIGHT own interest in this property, or I might not. If I do, I tranfer it to you. Why in the world wouldn't the purchasing spouse want someone to say I DO own this property and I transfer it to you when that is clearly the case.

Reply by MikeC/NY on 8/4/08 1:02pm
Msg #258433

Re: my example

"here is no divorce lawyer worth his fee if he feels a Quitclaim Deed is acceptable when title is held by a married couple and they use a QCD to transfer it to the other. One is paying the other for their share of the property - exactly the same as when two strangers agree to sell/purchase real estate."

You're making assumptions here - how do you know that one is paying the other anything? It could just be a simple transfer of ownership - nobody's buying or selling anything. That's how my divorce settlement was structured, and I transferred my interest in the property using a QCD; htere was no purchase involved. It's not all that uncommon, at least in this neck of the woods.

Reply by sue_pa on 8/5/08 7:48am
Msg #258557

Re: my example

While I certainly don't know the details of yoru divorce settlement, most times, one spouse is 'paying' the other for the marital dwelling, even if not directly. Different ways are the one retaining the home assuming the marital debt, foregoing alimony and/or child support, one spouse retaining the home while the other takes their assets from the retirement accounts/investments/bank accounts, etc.

Again, a QCD, at least around here doesn't fly in a divorce situation where there are assets and debts.

Reply by Gary_CA on 8/4/08 10:23am
Msg #258403

I suggest never arguing with a lawyer, even when he's wrong.

Don't want to beat it to death. I agree with all the others that a Quit Claim deed is the wrong doc anyway.

But that's not the issue.

Lawyers carry E&O policies that have deductibles bigger than our policy limits. (Nevermind that a Notary E&O Insurance policy isn't going to cover your UPL anyway).

Now this is your family, so you're sorta a principal so it's not quite the same... but here's you a good rule/habit.

The lawyer is always right. Even when he's wrong. Same goes for CPA's

As a Realtor we'll often know (or think we know) that a lawyer or accountant's specific advice is wrong in a specific instance... but lawdy, lawdy, I do NOT want to pit my advice against his.

Here's my strategy on that... I've used it a time or two succesfully. Gather up the info that would seem to indicate that his esquireness is mistaken and present it to HIM NOT THE CLIENT and ask him to educate you.

Mr. Lawyer, I saw you wanted a warranty deed for this transaction but I've done a dozen signings that just use a Quit Claim, wouldn't that be easier and cheaper?

One of two good things will happen. Either A) You'll get some free education... "Nope Ms. Notary, a QC doesn't protect all of us from questions that might arise, it's well worth the $100."

or

You'll make an attorney friend. "Gee Ms. Notary, you're right, thanks." Which you WILL NOT make by second guessing him.

This is too simple a solution, I've had this discussion with a CPA on the finer points of a 1031 exchange... saved his face AND educated me a little in the process.

BUT MORE IMPORTANT you'll avoid a situation you NEVER WANT TO BE IN (not even with family)

You vs. an attorney in court (he went to frat parties with the guy in the robe) arguing the damages caused by your UPL.

Reply by jba/fl on 8/4/08 10:32am
Msg #258406

Re: I suggest never arguing with a lawyer, even when he's wrong.

You vs. an attorney in court (he went to frat parties with the guy in the robe) arguing the damages caused by your UPL.

And that is another way that lawyers win - don't forget it either. They are still fishing, bbq-ing, hunting, etc. today and on their calendars for the reast of the future.

Reply by MikeC/NY on 8/4/08 6:47pm
Msg #258504

Good advice, Gary

I'm also a Realtor, and it's not uncommon that the Realtor knows more than the attorney does (especially when it's an attorney who doesn't really know or practice real estate law - try explaining "time is of the essence" to a litigator...).

As the saying goes, you can catch more flies with honey than you can with a .357 Magnum; the best approach is to do what you suggest. At worst, you might learn something; at best, you might earn some brownie points.