Legal Question in Real Estate Law in California
Unfiled Quitclaim Deed
My mother passed away unexpectedly and didn't leave a will. Going through her papers we found a notorized, but unfiled quitclaim deed listing myself as joint tenant. Signed and notorized in 1997, but not filed.
Can I file that deed and claim the house as mine to avoid going into probate? (file an Affidavit of Death of Joint Tenant, also...) This is a duplex with one side being her primary residence and the other a rental. I lived there for more than 2 of the past 5 years.(non-rental side)
One problem area is the fact that my mother refinanced in January 2002 (without my knowledge) and we don't know if the mortgage company will fight the filing of the deed.
There are 6 living children and we would like to sell the property, split proceeds evenly. (No one wants the burden of being a landlord!) My other question is if we sell the property will we have to pay Capital Gains? House was purchased in 1979 for $90g, appraised in Jan 2002 at $222g (low), could probably sell for $250-275g.
Respectfully submitted, thank you for your time.
1 Answer from Attorneys
Re: Unfiled Quitclaim Deed
The passage below, taken from WestLaw, seems to govern your situation:
"A deed which grantor executes with intention of having it take effect only after his death and which he retains in his possession or under his control is ineffectual to pass title for want of "delivery". McCarthy v. McCarthy (App. 1 Dist. 1947) 82 Cal.App.2d 166, 185 P.2d 821."
See also Civil Code section 1054: "A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor."
Since your mother (apparently) never delivered the deed during her lifetime, and its discovery after her death does not amount to delivery, the deed is worthless to you, I'm 99.99% sure.
Your slim hope is that some fact not revealed in your question would show a sufficient 'delivery' to you during your mother's lifetime. Delivery is a question of fact.
In my opinion you are looking at probate and will pay capital gains on any gain over the stepped-up basis the heirs will receive (value of property on date of death) on their respective shares. If the property produces income in the meantime, the income and the tax on it will also be shared, but the six (?) heirs will need both a probate lawyer and a tax person to help you find your way through the maze.
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