Suppose that your elderly grandmother had always told you that she would leave you her home, but upon her death, you discover that she suspiciously transferred the deed to her home to a neighbor. You believe your grandmother had been manipulated into conveying the deed. Can a deed be contested in such a situation?
In this instance, it’s likely the deed can be contested. First, your grandmother was of advanced age, which means that she may not have possessed the competence to know what she was doing when conveying the deed. Secondly, since your grandmother had always intended to leave the home to you, it’s possible her neighbor manipulated her to act against her own free will when conveying the deed.
That said, contesting a deed transfer is not always easy, because it generally will be up to you to prove why the deed is invalid. If you are unsuccessful, the deed will remain intact. This is why most people who are contesting a deed transfer work with a skilled probate lawyer to navigate the process.
Something else to remember is that there are many types of deeds, and each comes with its own set of rules and requirements. By having a lawyer on your team, you can rest assured the appropriate actions will be taken for the type of deed you are contesting.
Can a quitclaim deed be contested? Can a grant deed be contested? Can a transfer-on-death deed be contested? These are all valid questions to be asking, but first, let’s go over the basics of what a deed is, what makes a deed valid, and the most common types of deeds in California.
What Is a Deed?
A deed is a legal document that is used to confer ownership of an asset or property from one party to another party.
The person who signs the deed to sell or transfer an asset or property is known as the grantor, while the person taking ownership of the asset or property is known as the grantee.
Deeds are most commonly used to transfer real properties or vehicles; however, they can be used to transfer other types of assets as well.
Keep in mind that deeds and titles are not the same. A deed is an instrument used specifically for the purpose of showing a change in property rights. Title, on the other hand, refers to the actual property right of holding property in your name. Put simply, a deed is used to transfer title.
What Makes a Deed Valid?
For a deed to be valid, certain conditions must be met. If they are not met, the deed may be considered ineffective and void.
California deed requirements include:
- The deed must be in writing.
- The deed must be signed by the grantor.
- The deed must have a title indicating the type of deed (e.g., quitclaim, grant).
- The deed must contain the names of the current and new owners of the property.
- The deed must contain the addresses of the new owners for tax purposes.
- The deed must contain a granting clause (i.e., a statement of the grantor’s intention to transfer the property to the grantee — the grantor and grantee’s name must be included).
- The deed must contain the address and a description of the property.
- The grantor must have the capacity to the contract.
- The grantee must be capable of holding title.
- The deed must be delivered to the grantee.
- The grantee must accept the deed.
When a deed is missing information, contains incorrect information or has other fixable errors, a correction deed, affidavit or new deed can often be used to repair the issues with the deed. If the errors are not material (i.e., they do not alter the legal effect of the deed), then it may not be necessary to repair the errors. Before arriving at such a determination, however, it is best to discuss the deed with a lawyer.
On the other hand, if protocols aren’t followed or essential requirements aren’t met (e.g., the deed was not properly delivered or accepted or does not contain the identity of the grantor or grantee), then the deed may be considered automatically ineffective and void.
Common Types of Deeds
The most common types of deeds in California and their definitions are included in the sections below. It is important to understand the implications of the type of deed you are trying to contest before bringing your dispute.
What Is a Quitclaim Deed?
A quitclaim deed (also called a quit claim deed) transfers property from one party to another . Quitclaim deeds often are used to transfer property between family members, or in circumstances where there is not an arms-length sale of property with a third party.
When a grantor uses a quitclaim deed to transfer property, there are no warranties surrounding their interest or rights in the property. In other words, there is no guarantee that the grantor had valid ownership. However, by signing a quitclaim deed, the grantor does effectively release any interest they have in the property, as well as the right to later claim they have an interest in the property.
What Is a Grant Deed?
A grant deed offers more protection to buyers than a quitclaim deed, because it guarantees and warrants that the grantor has the legal right to convey the property to the grantee. In other words, the execution of a grant deed not only transfers the grantor’s interest to the grantee, but also guarantees that the grantor actually owns the property they are transferring.
What Is a Transfer-on-Death Deed?
A transfer-on-death (TOD) deed is a part of many people’s estate plans because it does not take effect until after the property owner’s death, allowing for the owner to maintain control over the property for their lifetime. TOD deeds enable properties to bypass the probate process and transfer directly to beneficiaries once the owner of the property dies.
While bypassing probate can save time and money, and allow beneficiaries to take immediate possession of the property, there are certain downsides of TOD deeds to be aware of. For example, TOD deeds don’t allow for contingent beneficiaries to be named.
What Is a Life Estate Deed?
A life estate deed is a deed that conveys a life estate interest to a life tenant , who has the right to reside in the property and exercise most ownership rights for the duration of their lifetime.
A life tenant can reside in and use the property for their lifetime, and they generally can earn income from the property if they lease it out as well. What they usually can’t do, however, is sell the property, take out a mortgage on the property or control how the property is disposed of after their death.
Once the life tenant dies, a person known as a remainderman will inherit the property, at which point, they generally can dispose of it in whatever way they wish. The remainderman cannot reside in, use, sell or dispose of the property while the life tenant is still alive, although there are exceptions to this rule. In a previous Keystone case, a life tenant lost her right to occupy a real property by moving to another state.
What Is a Survivorship Deed?
A survivorship deed enables a property to transfer directly to the surviving joint owner upon the death of one of the joint owners without the property having to pass through probate.
In California, survivorship deeds generally are used when title is held as joint tenants or as community property with right of survivorship.
What Is Joint Tenancy?
When title to property is held in joint tenancy, it means that each of the co-owners of the property (called joint tenants) owns an equal undivided interest in the property while they are alive. When one co-owner dies, their interest in the property automatically will transfer to the surviving co-owners without the property having to pass through probate.
As an example, if four siblings inherited a property, which they took title to as joint tenants (which would mean each sibling has a 25% undivided interest in the property), and one sibling dies, that sibling’s 25% interest in the property would automatically pass to the surviving three siblings in equal shares (which would mean each sibling would receive approximately 8.33% of the deceased sibling’s interest in the property).
What Is Community Property With Rights of Survivorship?
In California, any property acquired over the course of a marriage or registered domestic partnership is presumptively regarded as belonging equally to both spouses — with some exceptions. As an example, if a married couple purchases a home during their marriage, the law presumes that community property funds were used to make the purchase and that each spouse is therefore presumed to have a 50% ownership interest in the home.
Spouses can dispose of their 50% interest in marital property in whatever way they wish through their estate plan; however, if title is held as community property with right of survivorship, then the surviving spouse would automatically become the sole owner of the property upon the first spouse’s death without the property having to pass through probate.
Can a Deed Be Contested?
Suppose that an elderly person with dementia is given a document to sign that they are told is a medical consent form, but the document actually is a deed. There are many things wrong with this scenario. Not only did the elder most likely lack the capacity to contract when they signed the deed, but they were deceived into signing the deed. In such cases of blatant elder financial abuse, deeds generally can be contested.
There are also other reasons for contesting a deed transfer, which we’ll discuss at length in the following subsections. The important thing to remember is that valid grounds must exist if you plan to bring a contest. If you are unsure whether your reason for contesting a deed transfer is valid, consider discussing your case with a qualified probate attorney.
What Are the Grounds for Contesting a Deed Transfer?
Contesting a deed can be difficult, especially if the deed has already been recorded with the county clerk’s office, since that would mean the transfer of property is presumed to be complete. But if you have a valid reason for contesting a deed transfer, can prove it and have a skilled attorney by your side, you will stand a good chance of succeeding in court.
Continue reading to learn about the most common grounds for contesting a deed transfer.
Deed Was Forged
If the grantor’s signature on a deed was falsified (i.e., it was made by someone other than the grantor), then the deed is considered a forgery and can be voided on that ground.
Proving that a deed is a forgery can be difficult. For example, a handwriting expert may need to provide testimony to the court to verify that the deed was, in fact, a forgery.
Deed Was Signed by Incapacitated Person
If a deed was signed by a grantor who lacked the mental competence to understand the nature of the document they were signing or its implications, then the deed likely can be voided on the basis of the grantor’s lack of capacity.
A deed is a type of contract, which means that the grantor should possess the capacity to contract when signing it. Persons of advanced age with declining competence or cognitive disorders such as dementia, persons with severe mental illness, intoxicated persons and minors generally are regarded as lacking the capacity to contract.
To prove lack of capacity for adult grantors, medical documentation and statements from their physicians and others close to them may be required. On the other hand, if a deed was signed by someone who legally lacks the capacity to contract (e.g., a minor), then the deed is automatically void.
Deed Was Signed as a Result of Undue Influence or Duress
If a grantor was induced into signing a deed by being manipulated or threatened, the deed potentially could be voided on that ground.
Undue influence refers to excessive persuasion or pressure being exerted on a vulnerable person to make a decision they otherwise would not make. Duress, which is a more extreme form of undue influence, refers to a person being coerced or threatened into acting according to the perpetrator’s intentions. If one or both of these tactics played a role in the signing of a deed, then the deed is likely invalid and should be contested.
Proving undue influence or duress can be complicated, so it is recommended that you work with a probate lawyer if you plan on challenging a deed on one of these grounds. You will need compelling evidence and possibly even testimony from relevant parties to substantiate your claim.
The burden of proof in undue influence cases generally rests with the party bringing the dispute. However, in some cases, the burden of proof will shift to the other party because of a presumption of undue influence, causing the other party to have to prove that the deed obtained was not a result of their influence. There usually is a presumption of undue influence when the alleged influencer had a close, confidential relationship with the grantor (e.g., a caregiver or fiduciary relationship).
Deed Was Signed as a Result of Fraud
If a grantor was deceived into signing a deed they otherwise would not have signed, it may be considered fraud, which is a valid ground for contesting a deed transfer.
Fraud refers to a person intentionally being misled for a specific purpose. For example, if the adult child of an elderly homeowner lied to their parent about the tax consequences of keeping their home under their name, causing their parent to sign a deed transferring their home to them, then the deed likely could be challenged in court on the basis of fraud.
Of course, fraud will need to be proven to the court using evidence and/or testimony, but if you have a lawyer, they will be able to help with this process.
Who Can Contest a Deed?
Whether you have standing to contest a deed will depend on a variety of factors, including the nature of the deed and status of the grantor (i.e., whether they are alive, incapacitated or deceased).
As a general rule, in order to have standing to contest a deed transfer, you should have a financial stake in the property at hand. For example, suppose that your elderly parent signed a deed conveying their home to someone outside your family. If they hadn’t done this, you would have inherited a percentage share of the home through intestate succession, which would mean that you have a financial stake in the home.
In the following subsections, we discuss the parties who may have standing to contest a deed transfer.
The Grantor
If the grantor is mentally competent and alive, they may be the only party with authority to contest the deed transfer.
Suppose that a grantor was drugged and then manipulated into signing a deed transferring their home, as one of Keystone’s clients had been. This grantor had only been temporarily incapacitated; therefore, upon regaining capacity, they would have the standing to contest the deed on the ground of having lacked capacity at the time they signed the deed.
Grantor’s Attorney-in-Fact
If a person is mentally competent, they can sign a document known as a power of attorney to enable another person (known as the attorney-in-fact) to act on their behalf in either financial and legal matters or health care matters.
If a deed needs to be contested, and the grantor is mentally competent, only the grantor themselves or someone empowered to act as their surrogate decision-maker, such as their attorney-in-fact (given they have one, and the power of attorney is durable) or a conservator will have standing to contest the deed transfer.
If a deed needs to be contested, and the grantor is mentally incompetent, the grantor will not be able to contest the document themselves; however, if they had signed a power of attorney when they had been competent, their attorney-in-fact could potentially contest the deed transfer on their behalf, as long as the attorney-in-fact has authority over their financial and legal matters.
Grantor’s Conservator
If the grantor signed a deed before entering a conservatorship, but the deed is suspected to be invalid, their conservator of the estate will have the ability to contest the deed on their behalf.
Conservators of the estate are charged with protecting the financial interests of the person they represent (known as the conservatee); therefore, it would be within the rights of the conservator to take legal action to recover the property if they find out the conservatee had signed a deed transfer at a time when they lacked the capacity to do so or were otherwise manipulated or deceived into doing so.
Personal Representative or Trustee
If a grantor is deceased, but signed a deed before they died that is suspected of being invalid, then the personal representative of their estate or trustee of their trust may have the authority to contest the deed transfer. In some instances, if the grantor is still alive but is incapacitated, and the property in question is named in their trust, the trustee may be able to contest the deed transfer on behalf of the trust.
Whether the personal representative or trustee has the authority to contest the deed transfer will depend on whether the property in question would belong to the decedent’s estate or trust if the deed transfer were to be set aside. If it would belong to the former, the personal representative should bring the contest. If it would belong to the latter, the trustee should bring the contest.
Suppose that a deceased grantor had signed a TOD deed transferring their home to one of their children after succumbing to their undue influence. If the property had been listed in the decedent’s will, and the personal representative had reason to believe that undue influence was used to obtain the deed transfer, then they could contest the deed transfer on behalf of the estate beneficiaries in an effort to eventually distribute it in accordance with the terms of the decedent’s will, as the decedent had originally intended.
Interested Parties
If a grantor has died, but signed a deed transfer before they died that their loved ones suspect is invalid, they may have standing to contest the deed transfer, but only if they have a financial stake in the property at issue.
For example, they would be regarded as having a financial stake in the property if they were named as the beneficiary of the property in the decedent’s will or trust, or would receive a percentage share of the property through intestate succession.
If an interested party wishes to dispute a deed transfer while the grantor is alive, the grantor would have to be incompetent, and they would have to be either the grantor’s attorney-in-fact or their conservator. But keep in mind that a power of attorney cannot be signed by a person who is already incompetent. And if you wish to become a person’s conservator, you will have to complete the steps of establishing a conservatorship.
What Types of Deeds Can Be Contested?
Deeds can almost always be contested if valid reasons exist for doing so and you have standing to contest a deed. Nevertheless, it is a good idea to understand the nuances of contesting each type of deed for the best results.
Learn about what it takes to contest the most common types of deeds from the sections below.
Can a Quitclaim Deed Be Contested?
Quitclaim deeds are not complex instruments, but if a quitclaim deed meets one or more of the grounds for contesting a deed transfer, it potentially can be voided by the court.
When quitclaim deeds are contested, the contest tends to center on whether the grantor was legally entitled to transfer the property and on whether the property was legally transferred.
Can a Grant Deed Be Contested?
A grant deed can be challenged if the resulting transfer meets one or more of the grounds for contesting a deed. Proof, however, will need to be shown to the court to prove your reason for contesting the deed transfer is valid.
Can a Transfer-on-Death Deed Be Contested?
A transfer-on-death deed can be contested in the probate court, just as a will or trust is contested, and for the same reasons a will or trust is contested.
It is important to keep in mind that contesting a TOD deed can be difficult, since the deed causes the property at issue to automatically transfer to the beneficiary listed on the deed upon the property owner’s death. As a result, if you wish to contest a TOD deed, it is vital you act quickly to consult with a lawyer and devise a strategy.
Can a Life Estate Deed Be Contested?
A life estate deed can be challenged if it meets one or more of the grounds for contesting a deed.
Life estates can be complicated to navigate, so it is best to work with a probate lawyer if you plan to challenge a life estate deed.
Can a Survivorship Deed Be Contested?
A survivorship deed can be contested if it meets one or more of the grounds for contesting a deed, but contesting this type of instrument can be more challenging than contesting a will or trust because survivorship deeds allow for the property interest of a decedent to automatically transfer to the surviving co-owners upon the decedent’s death. This is why it’s crucial to contest a problematic survivorship deed immediately following a co-owner’s death with help from a lawyer.
With a will or trust, there usually is a delay before assets transfer to beneficiaries, since estate and trust administration can take time. While there are still deadlines to be mindful of, there is less risk of the property at issue having been disposed of prior to the contest action having been initiated.
Can a Joint Tenancy Be Severed?
In California, a joint tenancy can be severed without first obtaining the consent of the other joint tenants. In other words, a joint tenant could sell or convey their interest in a property without informing the other joint tenants or seeking their approval. Severing a joint tenancy, however, is not possible once a joint tenant dies.
Joint tenants can also agree to sever a joint tenancy. For example, they could record a deed changing the title to tenancy in common, which would allow the joint tenants to each own an undivided interest in the property that would not automatically transfer to the surviving tenants upon one tenant’s death.
Joint tenants also have the ability to convey their property interest to themselves. In other words, they could change the way they hold title. For example, if they owned 50% of a property as a joint tenant, and convey that interest to themselves, they can dispose of their 50% of the property however they please instead of it automatically transferring to the surviving joint tenant should they predecease them.
If joint tenants cannot agree on a course of action (e.g., if one joint tenant wishes to sell the entirety of the property, and the other joint tenant wishes to keep the property), then a partition action is always an option for forcing the sale of the jointly owned property; however, keep in mind that partition actions can be expensive and time-consuming, so if you are able to settle the dispute outside of court, it may be preferable to do so.
Severing a joint tenancy can be complex, and the consequences can affect not just you, but the other joint tenants as well, which is why it is good to consult with a lawyer prior to severing a joint tenancy.
Can Community Property With Rights of Survivorship Be Severed?
When property is held as community property with right of survivorship, the right of survivorship can be severed in the same ways joint tenancy can be severed, but it can only be severed prior to the death of either spouse.
As with joint tenancy, if the right of survivorship is severed, title to the property likely will convert to tenancy in common (or community property without the right of survivorship), where each spouse will own an undivided 50% interest in the property that they can dispose of in whatever way they deem fit.
FAQs on Contesting a Deed Transfer
Contesting a deed transfer can be complicated, but we hope this article has provided you with enough information to help you start the process. For more on contesting a deed transfer, read our FAQs below.
Can you remove someone from a deed without their consent?
It is not possible to legally remove someone from a deed without their knowledge and express consent. If a person is nonconsensually removed from a deed, it’s likely it was done under illicit circumstances, which would be a valid reason for contesting the deed transfer in court.
If it’s proven that a person was removed from a deed without their express consent or knowledge, the deed generally will be set aside.
Does a deed override a will?
When a deed is transferring a property that is also included in a decedent’s will, the deed will be considered valid and effective to transfer the property unless the deed is successfully contested. This means that the deed can effectively transfer ownership of the property out of the grantor’s estate, so that the property will not be distributed pursuant to the grantor’s will. If the deed is successfully contested, the property most likely will be distributed in accordance with the terms of the decedent’s will, given that the will instrument is valid.
Does a deed override a trust?
When a deed is transferring a property that is also included in a decedent’s trust, the deed generally will be considered valid and effective to transfer the property just as it would when the property is listed in a will, unless the deed is successfully contested. If the deed is successfully contested, the property most likely will be distributed in accordance with the provisions of the decedent’s trust, given that the trust instrument is valid.
What is a quiet title lawsuit?
A quiet title lawsuit is brought when there is a dispute surrounding the ownership of real property. The aim of such a lawsuit is to confirm which parties have an ownership interest in the property and the amount of each party’s ownership interest
Does a deed have to be recorded to be valid?
In California, a deed does not have to be recorded with the county clerk’s office in order to be valid; however, not recording a deed would be unwise if you are the grantee. That is because recording a deed creates a presumption that the deed is valid.
Failing to record a deed also can be problematic for other reasons. For example, if you are a grantee, and you fail to record a deed, someone else could record a deed for the same property, which could put your ownership of the property at risk.
If you are a grantee, it is recommended that you record the deed with the county clerk’s office as soon as possible after accepting delivery.
Do deeds need to be notarized?
Technically speaking, a deed does not need to be notarized if you don’t plan on recording it. However, not recording a deed, as we already discussed, is risky and not recommended.
The county clerk’s office will not record deeds unless they are notarized. To notarize a deed, both the grantor and grantee will need to sign three copies of the deed in the presence of a notary public and one witness.
Want to learn more about contesting a deed transfer? Our attorneys are here to help.
People’s homes and real properties are often the most valuable assets they own. Finding out that invalid deed transfers caused these properties to be unknowingly gifted away or illegally transferred can be devastating. The good news is that deeds can be contested.
While it is by no means impossible to contest a deed, it can be difficult, especially in instances where the grantee has already taken possession of the property. Because of the complexities involved in contesting a deed, it is best to work with a knowledgeable lawyer to navigate the process.
Keystone’s attorneys have ample experience overturning deeds obtained through wrongful means. If you would like to learn more about the process and how we specifically can help you, call us today to request a free consultation.
