Giver’s regret isn’t unusual. A desire to void the gift of a home after transferring the deed could happen for various reasons. Perhaps you recovered from a serious illness and could really use that home after all. Or maybe your tax expert told you that letting someone wait to inherit your home would be better for the beneficiary, or for you. Perhaps you just don’t like the way your recipient is behaving, and now feel you made a mistake by giving your home away to an irresponsible person.
And now you need answers. Can you take back the deed that you transferred?
No Take-Backs! Unless Your Recipient Will Deed It Back
Transferring your home to a new homeowner is a simple matter. Dig up your current deed, get the correct deed form to create the transfer to your chosen recipient (“grantee”), and make an appointment with the local notary public. Then your signature can be notarized and the deed can be filed.
Once it’s delivered to and accepted by the other person, your properly created gift is not revocable.
Like a contract, a properly conveyed deed is binding. This ensures societal trust in the validity and reliability of legal agreements.
Are there exceptions? Could some gift deeds be undone? Yes, but they involve a mistake (and people don’t usually transfer homes by mistake) or some connivance which would make the recipient’s ownership unconscionable (like fraud or undue influence).
In rare cases, people may transfer deeds as gift causa mortis. A gift causa mortis is a gift given because the giver thinks they are about to die, and they want to pass an asset to another person who will live to enjoy it. In some circumstances, these gifts can be, and have been, revoked under state law provisions. The IRS, too, has held certain gifts causa mortis were not completed gifts. So, they were revocable.
If you were pressured into giving your home away, or if you made a mistake which, if allowed to stand, would shock the conscience, rescission could be possible. We cannot offer case-specific advice or predictions. Generally speaking, for a lawyer to prove there’s a legal reason to rescind a deed transfer would be very difficult.
So, absent truly unusual circumstances, you would need to ask the other person to transfer the deed back into your name. If the recipient isn’t willing to give you the home back, you’ll need to live with your decision.
What If the Deed Was Improperly Created?
A gift of a home is covered by the Statute of Frauds. This means giving real estate away has to be done in writing. The giver (a.k.a. the donor or grantor) must produce a written document naming the donor and the recipient (a.k.a. grantee). It has to include an accurate legal description of the property given.
A properly written deed has legal language showing the granting of your interest in the property to the grantee.
What makes a gift deed unlike other real estate deeds? It represents a conveyance of the home to a new owner with no consideration given to you in return. As it is a gift, you may receive no actual money and nothing of value in return for giving away the home. (Don’t “sell” it for a dollar; the tax authorities will still look upon the deed transfer as a taxable gift.)
You must sign it, and deliver it to the grantee. And the grantee must accept the deed. This means if your chosen recipient says “Well, thank you, but not yet!” and refuses to accept your home at this time, then there is no completed gift.
☛ To be valid a deed must follow up-to-date statutory requirements in the home’s state and county. Find updated deed forms, including gift deeds, on Deeds.com.
What If the Deed Is Not Recorded?
Going back to the example of a recipient who says “not yet,” are you hoping to live in the home yet give the deed to someone else? Before creating a deed, learn how the applicable laws might treat this.
Per the Internal Revenue Code, you’re trying to hold a life interest in the property. So the home will go into probate. Even if you actually conveyed the deed, the IRS could decide you haven’t made a completed gift!
If you quitclaim your home to a recipient who holds onto the quitclaim to record “when the time comes,” that’s not a completed gift. The probate court will come into the picture later to make a determination as to whether your deed was legally delivered and accepted.
☛ Unrecorded deeds get lost or even forgotten. Don’t leave that monster under the bed! Read up on unrecorded deeds and the law.
Live and Learn: Other Estate Planning Tools May Serve Homeowners Better
As for alternatives, consider wills, trusts, or the transfer on death deed.
- Write a will. When a probate court certifies a deed transfer, your recipient gets peace of mind for good. Most states offer an inexpensive version of probate for modest estates.
- Create a trust. It’s possible to put a home into a trust with a Declaration of Trust document. A revocable, living trust takes time and expense, but it’ll keep the home out of probate.
- Use a transfer on death deed. In states that allow them, transfer on death deeds are revocable. You call the shots during your lifetime.
The Life estate deed or joint ownership with survivorship rights could be alternatives. It all depends on your own situation and relationships.
The simplest choice? That would be the will.
☛ Some Medicaid applicants give away their property. The government carefully watches recent transfers — which might not be necessary at all. Remember, the value of a primary residence usually won’t be counted against benefits eligibility as long as a spouse or close family member occupies the home. Learn more about giving away property to qualify for Medicaid.
Home Truths: Gift Deeds Mean What They Say
If you gave your deed to another person voluntarily and in sound mind, and the gift was legally valid, that is that. You bear the risk of your transfer. This is the blunt truth.
In short, homeowners deed to distribute their assets with care and certainty. Sit down with your accountant and a family lawyer or a wills and estates lawyer in your state to get case-specific advice.
☛ At Deeds.com, we offer articles to share general knowledge and help our readers spot issues. But nothing on this site can substitute for professional advice. We are not financial or legal advisers. Here are some points to ponder before transferring a deed without a lawyer.
Supporting References
Internal Revenue Service No. 200308046, Index No. 2511-00.00, citing Rev. Rul. 74-365, 1974-2 C.B. 324, gift causa mortis (PDF released Feb. 21, 2003).
Schorr Law, APC via JD Supra, LLC in JD Supra News & Insights Can You Void a Deed After Gifting It? (Jul. 27, 2023).
Schorr Law, APC: Can Somebody Take Away Property Gifted to You? (updated Sep. 18, 2023).
Deeds.com: Warning – When Not to Sign Over Your Deed (Apr. 7, 2023).
Deeds.com: Don’t Quit Your Claim! A Quitclaim Deed Is Not a Mortgage Saving or Estate Planning Tool (Apr. 26, 2019).
And as linked.
More on topics: Revoking a deed, Wills, estates, and trusts
Photo credits: Marco Verch via Flickr (CC BY 2.0) and fauxels, via Pexels.