Does Real Property Need a Deed?

You can own land, but never have a deed. Transfer of real property uses a deed, but it's not a necessity. Title to land also passes according to the terms of a decedent's will or by the laws of intestate succession if no will exists. Either way, you own the land just as much as if a seller handed you a deed.

Any person who dies, known as a decedent, has the ability to pass title to his real property pursuant to the terms of his Last Will and Testament. The normal rule in most states mandates that title vests immediately upon death. Probate of the will in the appropriate court provides a written public record. The will must be recorded to take the place of a deed.

Intestate succession refers to state laws that govern title to real property when the owner dies without a will. The law in effect on the date of death applies. Every state has its own laws, so there is no set rule. Application of the law requires knowledge of the decedent's heirs. Which heirs acquire title depend upon who survive the decedent. In most cases, the surviving spouse and children inherit the property.

Heirs who take by will or intestate succession can receive a deed, although it isn't necessary. The executor or personal representative of the decedent's estate has the power to execute a deed in favor of the heirs. Legally, the deed has no consequence but the heirs often want a deed. In the case of intestate succession, the executor or personal representative needs to be careful to include all heirs. He should obtain affidavits from family members and then spell out the information in the deed so that anyone reading it will understand how the heirs were determined.

A seller in a normal real estate transaction vouches for good title. He does this by the terms of a warranty deed to the buyer. Heirs to real estate without a deed receive no such warranty. They inherit the title of the decedent, which may include liens, easements and debts. Hopefully, the decedent has sufficient assets to pay those debts. Otherwise, the heirs must pay the debts to keep the real property.