How to Transfer Ownership of Real Estate?

Transferring ownership of real estate requires the owner of the property to prepare and record a legal form known as a "Deed" with the Clerk of Court in the County where the real property is located. There are a number of different legal Deeds that can be used to transfer ownership. The two most common types of Deed are the "General Warranty Deed" and the "Quitclaim Deed." The General Warranty Deed gives the new owner a guarantee that there are no problems with the chain of title to the property, while the Quitclaim Deed makes no such guarantee.

Keep in mind that the General Warranty Deed and Quitclaim Deed are only the two most popular types of transferring ownership in real estate. There are a number of Deeds that can do anything from transferring only partial ownership in real property to naming a successor to the property owner should the owner pass away.  In most states, templates for the General Warranty Deed and the Quitclaim Deed can be obtained from the Clerk of Court in any County.

Locate the Clerk of Court in the County where the real estate property is located

In most counties the Clerk of Court's office is located at the County Courthouse. Keep in mind that there is a difference between the County Courthouse and a State or City Courthouse.

Request a template for either the General Warranty Deed or Quitclaim Deed from the Clerk of County Court. If the property is being transferred because it has been sold, the buyer will most likely require the seller to guarantee that the seller actually owns the property and that the chain of title shows that there have not been any unlawful transfers of the property in the past.  The seller guarantees clear title using a General Warranty Deed.

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If the property is being transferred as gift to a relative or the seller is paying only a nominal monetary amount for the transfer, the seller is not likely to be willing to guarantee the chain of title. In this case, a Quitclaim Deed should be used to transfer ownership of the property.

Obtain the Legal Description for the real estate property being transferred

The phrase "Legal Description" refers to the legal phrase used by the County Tax Assessors office to describe the property being transferred. The Legal Description is NOT the property address. Instead, the Legal Description is a description given to the property based on a survey of the property.

The Legal Description to the property can be found by looking at the Deed given to the current owner of the property when he or she originally obtained ownership of the property. In most Deeds, the Legal Description is the document marked "Exhibit A" attached to the Deed.

If the Legal Description is not found on the property owners Deed, a copy of the Legal Description may be obtained from the local County Tax Collector's office or County Public Recorder's Office.

Fill in the Deed template obtained from the Clerk of County Clerk

The term "Seller" in the template refers to the current owner of the property.  The term "Buyer" refers to the individual or company to whom ownership of the property is being transferred. Include the Legal Description in the body of the Deed if it is short enough to fit in the space marked "Legal Description."

If the Legal Description will not fit in the body of the Deed, write the phrase "See Attached Exhibit A" under the section marked "Legal Description." Attach the Legal Description to the Deed using a separate sheet of paper marked "Exhibit A" at the top.

Take the completed Deed (including the attached "Exhibit A") along with a blank check for a Deed recording fee to the Clerk of the County Court. The recording fee will be charged for entering the transfer into the County records. Most counties base their fees on the value of the property being transferred.

Make copies of the the recorded Deed for both the seller and the buyer. The recorded Deed is the deed the Clerk of the County Clerk has stamped the date and time when the Deed was recorded.

How to Keep the State From Taking Real Estate When an Owner Dies With No Will

There are a number of popular tools for ensuring property does not end up in the possession of the state when someone passes away without a Will. Three of these tools include: (1) the state's particular "Intestate Statute," (2) naming an heir in the property deed, and (3) setting up a trust. Each of these tools is designed to allow a property owner to determine who will take ownership of his or her property upon passing away. It is important to note that one of these tools (Intestate Statute) will likely require a legal proceeding to determine ownership while the other two (property deed and trust) do not.

Intestate Statute

Every state in the United States has adopted its own set of laws for dealing with property owners who pass away without a Will. These laws are called "Intestate Statutes." The objective of these Intestate Statutes is to create a one size fits all system for distributing property to the heirs of a deceased person. In general, Intestate Statutes attempt to determine how the deceased would have distributed his or her property had he or she created a Will. To that end, most Intestate Statutes assume that husband and wife would have left property to each other (as opposed to a third party) had they created a Will. If no Will or other document disposing of the property can be found, a court will most likely award the property to a surviving spouse under the Intestate Statute. If there is no surviving spouse, the property will likely be awarded to the deceased's children in equal shares.

Naming an Heir in the Property Deed There are a number of different ways to leave property to an heir using a property deed. The most popular property deed is the Warranty Deed. While the Warranty Deed is useful in transferring property in a real estate sale, it does not allow the new owner to name an heir in the deed itself. If the new owner passes away owning property under a Warranty Deed, his or her heirs will have to file a petition in Probate Court (either under the Intestate Statute or a Will) to determine who should inherit the property.

On the other hand, if the owner of real estate passes away owning property under an Enhanced Life Estate Deed, Life Estate Deed, or Transfer on Death Deed, the property will pass to the decedent's heirs without having to go to court. 

Trusts

Setting up a trust is very much like creating a fictional person whose job is to own and manage your property for your benefit. There are a number of tax, legal liability and estate planning benefits to setting up a trust. In general, a trust is a legal entity created to take possession of property either before or after you pass away. When you pass away, the trust is still “alive,” and continues to be owned and managed for the benefit of your heirs. Since the property is owned by a trust and not a real person, legal judgments against a real person do not attach to the trust property.