Legal Question in Real Estate Law in California

In California can I quit claim my interest in a property to my two minor children?


Asked on 11/16/10, 9:08 pm

1 Answer from Attorneys

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

Maybe. There is a fundamental legal problem, in that a deed, to be effective, must be delivered and accepted by the grantee. Minors lack legal capacity to do things like accept deeds, so the courts have constructed a rule that deeds to minors will be treated as effective to transfer title only if the deal is basically sound and favorable to the minor. Thus, a parent cannot foist off environmentally-damaged land on his unsuspecting kids. However, if there is a genuine gift without crabs under the rocks, maybe.

There is another problem, in that you probably don't have a genuine, bona-fide reason to want to do this. It makes no sense. There are almost for sure major problems for both you and the kids -- taxes, fraudulent transfer, due-on-sale loan provisions, etc. all militate against transferring property to children, especially minors.

Before making such a quitclaim, you should explain your possible reasons to a lawyer who has the right experience and specialization to advise you on the gift, inheritance, capital gains and other tax issues, the laws against fraudulent transfers, the difficulty of managing property that is owned by minors (how can they pay the property taxes and insurance?), and the possibility that the transfer will be a default under any existing loans or will trigger a due on sale clause.

Almost all deals of this kind that lawyers see are ill advised and will result in problems for parent and child down the line.

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Answered on 11/21/10, 9:36 pm


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