Release of rights in real property to another

Full question:

My situation: My uncle is currently living in an assisted living facility in Escambia County, Florida. He has willed to me his 1/2 of his property located in Escambia County, Florida.The other 1/2 of the property belongs to his deceased common-law wife. When she died, she did not leave a will. Her 2 children have verbally consented to sign the property over to me - no strings attached and uncontested.My question: Is there a form I can file to either get the deceased woman's 1/2 of the property put into my name or my uncle's name? All parties have agreed that the property shall go to me.

• Category: Wills and Estates
• Date: 04/07/2025
• State: Florida

Answer:

The type of deed form to use will depend on the current ownership of the property. If the wife's estate was probated, a fiduciary deed may have transferred the property to her heirs, or if it was held with the husband as joint tenants with a right of survivorship, the wife's share may have passed outside probate to the husband.

When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The court will issue letters testamentary or letters of administration, giving the executor or administrator authority to collect the assets of the decedent. In order to issue letters of administration or letters testamentary a petition to probate the estate is filed.

To dispose of the real property interests of the decedent, the executor/administrator executes an fiduciary deed. The deed may be prepared and filed without an attorney. For example, if a person who is a co-owner dies, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining owners. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and automatically will inherit the share of a deceased joint tenant by right of survivorship, without the requirement of going through probate.

A deed is the written document which transfers title (ownership) or an interest in real property to another person. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed and notarized by the grantor. In addition to the signature of the grantor(s), deeds must be acknowledged to be recorded and acceptable as evidence of ownership without other proof. A valid deed must be delivered and accepted to be an effective conveyance. Most states assume delivery if the grantee is in possession of the deed. The deed also must be accepted by the grantee. This acceptance does not need to be shown in any formal way, but rather may be by any act, conduct or words showing an intention to accept such as recording the deed. To complete the transfer (conveyance) the deed must be recorded in the office of the county recorder or recorder of deeds in the county in which the real estate is located.

There are many situations in which it may be desirable to add or delete a person's name from a deed, such as adding or removing a spouse, child or sibling. A person can only be deleted from a deed with their approval, i.e., they must execute the deed (sign and have their signature notarized). A quit claim deed is often used between family members when there is no doubt as to the ownership or claims on the property.

There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The only type of deed that creates "liability by reason of covenants of warranty" as to matters of record is a general warranty deed. A quit claim deed contains no warranties and the seller doesn't have liability to the buyer for other recorded claims on the property. The purchaser takes the property subject to existing taxes, assessments, liens, encumbrances, covenants, conditions, restrictions, rights of way and easements of record. However, a person who obtains a mortgage is still liable for mortgage payments after executing a quit claim deed on the property securing the mortgage. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title.

According to Fla. Stat. § 689.01

No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party's lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party's lawfully authorized agent, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section.