Does a Quitclaim Deed Pass to the Heirs?

By John Cromwell

When a person dies, a significant portion of his property passes through the probate process to be divided and distributed among the decedent’s heirs. Traditionally, an heir was a surviving spouse or relative who received property under the state’s intestacy provision. Intestacy only takes effect when there is no valid will. However, the modern definition of an heir includes anyone who receives property from an estate, whether through intestacy or a will bequest. The ownership rights of the heirs, including property that was acquired by the decedent through a quitclaim deed, depends on the circumstances of the transfer.

Quitclaim Deed Defined

A quitclaim deed is a means of transferring real estate. When a person executes a quitclaim, he surrenders all rights to the property. The recipient of the deed receives the same interest in the property that the person who executed the deed had. Once the executor of the deed has transferred the property, he has no liability for any future claims on the property. If a third party makes a competing claim on the land, the recipient of the quitclaim cannot sue the prior owner to recover damages.

Probate Property Defined

Whether through intestacy or a valid will, an heir can only take property that qualifies as probate property in the decedent’s estate. Generally, real estate that is owned solely by the decedent at the time of his death is probate property. Property that is co-owned by the decedent as a tenant in common can also be transferred to an heir. Property that was jointly owned by the decedent with a right of survivorship for the co-owners is not included in the probate estate.

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Rights of Heirs to Property

When real estate is transferred to an heir, the heir only gets the rights that the decedent had in the property estate. So if property was transferred by a quitclaim deed to the decedent, the heirs are also subject to that deed. This means that the heirs have the same ownership rights to the property as the person who sold the property to the decedent and that the heirs cannot sue the original owner. If the decedent was a tenant in common, the heirs can only claim the decedent’s undivided share in the property.

Heirs' Property

When certain parcels of real estate are processed through an estate that is intestate, the probate court may transfer the property to several heirs as co-tenants in common. Property that is transferred this way is known as heirs’ property. As tenants in common, each heir owns a portion of the land but has the right to use the entirety of the property. So while the decedent may have obtained sole ownership right to the entire property through a quitclaim deed, if the real estate qualifies as heirs’ property each recipient will receive a smaller share of the asset.

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Problems With Selling the Property of an Heir


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