Can you record a deed after someone dies?

Cory: Hello. I have a real estate question. I live in a house for a few years that my dad-- well actually he owned, he deceased back in February. And I was going to buy it from him, but he died before I could get a chance. 

And he gave me a quick claim that I have not filed yet, but my mom, she was not involved in the mortgage at all. So her name is not on the house, but I am paying her and she is paying the mortgage company. They have not been notified yet of his death.

Attorney Tom Olsen: So Cory, you've got a lot going on, but by the way, the deed that your dad gave you, did your mom sign it too?

Cory: Yes, I believe so.

Attorney Tom Olsen: Okay. So, Cory, there are two things going on here. Number one, even if the house was in your dad's name only, for him to convey his home’s debt to you or anybody else would require the signature of his spouse, his wife. So if we looked at that deed and your mom's name is not on that deed, well you’ve got a problem. Of course it could be fixed, but she’d have to sign a deed too.

Number two, to make a valid deed, it requires two things. Number one that your dad signs it, and number two that your dad deliver it to you. When you now attempt to record this deed after your dad died, there is this question of delivery.

Somebody looking at that deed may say, "You know what, your dad signed a deed, good enough, but he stuck it in a drawer somewhere", and then after dad died, Cory started looking around, finds this on record deed and goes down and records it. 

Cory: Okay. I actually have it. He did gave it to me before he died. 

Attorney Tom Olsen: I know. That’s why I’m sure you will tell me it is, but it is automatically suspect because you’re recording it after he died. 

Cory: Okay. Even though it was done through the lawyer? 

Attorney Tom Olsen: So, Cory, tell me your question?

Cory: Okay. Well, if I record that quick claim, would I be able to take over the mortgage and re-fi or even just sell the house? 

Attorney Tom Olsen: Okay. So can you assume your dad's existing mortgage? The answer is absolutely not. Can you record your deed and possibly refinance? The answer is possibly yes. So my recommendation, Cory, is number one, let’s make sure your mom signed that deed. And if not, let’s get her to sign a deed too. 

But number two, go ahead, record it. Attempt to do your refinance or sell the property. The title company that’s going to write title insurance to your lender or to your buyer may pick this up as an issue, this late recording, or they may not pick it up as an issue, but just be prepared that down the road just simply recording the deed may not be all it takes to get it under your name. Does it make sense to you?

Cory: Would probate be necessary? 

Attorney Tom Olsen: Well, that’s what I am saying. If you record this deed and you attempt to do a re-fi or sell the property and the title company picks up this issue, they may say, Cory, you need to do a probate. So I’m not saying it’s automatic. I’m just saying there's a possibility.