Madison, AL asked in Real Estate Law for Virginia

Q: How do I go about putting a residence which is in Quit Claim into a Trust? My mother put residence in Quit Claim and

as both parents have past, the residence now comes to me and someone told me to put the residence in a Trust through my banking system. Is this correct? And how do I do this? The property is in Arlington, VA.

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1 Lawyer Answer
Richard Sternberg
Richard Sternberg
  • Potomac, MD
  • Licensed in Virginia

A: The form of the title doesn't change the answer. Whether the quitclaim was recorded may matter. The short answer is that you need to transfer title to the trust by deed, and that isn't terribly difficult, but it may involve some expenses. Okay, let's break it down:

There are three types of deeds: 1) general warranty deed; 2) special warranty deed; and 3) quitclaim. All three transfer land, but the quitclaim basically says that the grantor gives you whatever title he or she has with no warranty. If your mother owned it by quitclaim, whomever she granted it to owns it. If she received it by quitclaim and the grantor had good title, it was hers as soon as the deed was recorded. If the grantor of the deed didn't own good title, then the grantee doesn't have a cause of action against the grantor.

In some jurisdictions, an unrecorded deed is less than fully effective. It can become an option by estoppel in fact, but that's a complex discussion. If, like in DC, the grantor must complete a form, like an FP-7, to record the deed, and there was no recording, you may have a cloud on title that may need to be resolved in a Petition to Quiet Title. If it was recorded, skip this part.

If the title checks out, in Virginia, land title passes outside probate subject to recapture by the executor or administrator. So, it may simply be possible for the heirs to deed the property to their trust(s). If the trust is a living trust where the prior title owner is also the settlor and one of the beneficiaries, this may be a tax-exempt transaction. That requires legal and title review.

Finally, I have no idea what it means to put a trust "through my banking system." Perhaps you are seeking to enrich your bank by making them the trustee. This should be discussed with a Virginia lawyer before you do it.

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