I am the joint tenant owner with right of survivorship with my mother. We would like to remove her name and add my brother's. I've filled the form out with all the necessary details (grantor/grantee, property description, parcel id, etc.)

I am ready to file this with the county comptroller. I want to make sure when it's filed (book/page observable in public record) that the change of ownership is legally binding. I think it is based on what I've read but I just wanted to add some confidence otherwise I'll seek a lawyer (but would really rather not).


Short Answer

Yes. A deed is legally accepted if it is recorded.

Long Answer

If both you and your mom sign it and it is notarized that fulfills two of the three parts necessary to be legally binding: signed, sealed and delivered. Delivery can be accomplished by handing to deed to the new joint tenant, by handing to an agent for the new joint tenant, or by recording the deed. (Of course, this is only valid if mom is competent and not under undue influence and isn't committing a fraudulent transfer to defraud her creditors.)

If the new joint tenant has not personally accepted the benefit of the joint tenancy, however, the new joint tenant can disclaim the gift of real estate and reject the gift. This could happen in this case if it was done in the proper manner (established by state law) in the proper time frame. If the new joint tenant disclaimed the gift, the new joint tenant would be treated as predeceased you, and you would become the sole owner of the property.

Someone might disclaim a gift, for example, because it would just go to their creditors or would disqualify them for public benefits that are means tested or because the property might come with toxic waste liability.

Of course, while you have represented that you filled out the deed correctly, without seeing it and knowing which state's law applies, there is no way anyone over the Internet can confirm that you did it correctly.

While it wouldn't invalidate the transfer if it was not done, there are also tax obligations associated with the gift of a joint tenancy interest. First, you and your mom have a duty to communicate her tax basis in the property to the new joint tenant (basically purchase price adjusted for capital improvements and depreciation taken for tax purposes). Second, if the value of the joint tenancy interest exceeds $15,000, your mom must file IRS Form 709 (a gift tax return) disclosing that the gift was made to your brother and establishing the value of the gift. Form 709 is due on April 15 of the calendar year following the calendar year in which the gift is made (subject to adjustments for certain holidays and Sundays).


Get a lawyer. If it isn't right, and one of the signers dies, has a change of mood, or anything like that, it will be much harder and more expensive to fix it later. Just one of many potential issues: a quit claim "deed" is the weakest way to transfer property, and a potential buyer might decide buy some other property instead because the quit claim deed is weak.

OP wrote "I want to make sure when it's filed (book/page observable in public record) that the change of ownership is legally binding." The government agency that receives the quitclaim deed for recording only does some very cursory checks to decide whether to accept it. This varies from one jurisdiction to another, but commonly check to see that it has been signed, the signatures have been acknowledged before a notary, the paper size is correct, and the margins are big enough. They do not determine if the document is legally binding. It is perfectly possible to record a document that turns out to be invalid.


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