Occasionally, some individuals utilize “pocket deeds” to retain control of property during their lifetime while avoiding probate upon death. The definition of a pocket deed is a deed that is signed during the estate owner’s life but only recorded in the land records upon his/her passing.
Nonetheless, pocket deeds have their fair share of risk for people who want to circumvent the structuring of an adequate estate plan.
In this article, you will find out whether it is a good idea to use pocket deeds to avoid probate in Florida.
Using Pocket Deeds to Avoid Probate in Florida – Are There Any Advantages?
In essence, there are two advantages associated with pocket deeds – retained control of property and avoiding probate. A pocket deed is a deed that remains unrecorded up until its owner’s death.
Considering unrecorded deeds are not a matter of public records, the individual transferring the property remains the property owner in the records. Hence, while the deed remains under his/her possession, he/she can change or cancel the deed depending on the circumstances.
When a pocket deed is recorded in the land records upon its owner’s death, the goal is to avoid probate. In case this tactic works (which is not guaranteed), the deed will be treated as it was signed upon the owner’s death, so the property is not exposed to probate.
However, it is crucial to note that pocket deeds are not proven estate planning strategies.
Why You Should Not Use Pocket Deeds in Florida – In Detail
A Pocket Deed May Originate Title Clouds
Usually, one of the first steps in a real estate transaction is the title search. During the title search, a title examiner will proceed with a thorough examination to identify title issues, such as third party’s claims, unreleased liens, encumbrances, etc.
In this context, a pocket deed may create clouds on a title, which may invalidate the title to real property or make the title doubtful for use in transactions. A deed is not effective unless it is properly signed and delivered, as simply signing a deed is not sufficient to complete the transfer of a property.
In most transactions, a deed is recorded and delivered simultaneously during the conveyance at closing. As pocket deeds are not recorded, there is no proof of delivery, which may give rise to questions such as:
· Did the transfer deliver the deed to the transferee?
· Is it possible to prove the deed was actually transferred?
This type of question may cause several issues in a transaction, such as insurers denying policy underwriting, title companies proceeding reluctantly, and other similar problems.
A Pocket Deed May Expose a Property to Creditor’s Liens
When a deed remains unrecorded, third party’s creditors do not receive notice that the property has been transferred. Consequently, the transferor’s creditors may put a lien on the property without knowing its ownership has changed.
A Pocket Deed May Not Avoid Probate as Expected
Although some may consider pocket deeds to circumvent probate, they may not attain their goal. For instance, if the recording laws change after the transferor of unrecorded property signs the deed, it may hinder the deed unrecordable at a later date.
Also, similar issues could happen if the deed is destroyed, hidden, or misplaced by a third party, exposing the property’s owners to hefty expenses (usually greater than probate costs).