PS 01820.048 Texas

A. PS 00-101 Texas State Law Regarding Transfers of Real Property to Minors

DATE: May 18, 2000

1. SYLLABUS

Under Texas law, real property can be transferred to a minor (grantee). The age of the grantee is not an issue; only that the grantee exist and be legally capable of accepting the deed and holding title to the property. For example, property cannot be transferred to either a deceased or fictitious person. Under Texas law, an individual is considered capable of accepting the deed even though he/she has not yet attained the age of majority.

A valid deed transferring title to real estate must be in writing; specify a grantor and grantee; and contain an adequate description of the property. It must be signed by the grantor and acknowledged before a notary public and there must be delivery of the deed by the grantor to the grantee. Delivery makes the transfer effective.

2. OPINION

This memorandum is in response to your request that we review a specific conveyance of property by a claimant for Supplemental Security Income (SSI) to her minor grandson. You have requested our opinion as to whether this is a valid transfer of property under Texas law. You further request that we provide you with any other general information that we can obtain regarding the transfer of property to minors in the State of Texas. For reasons discussed below, we believe that the conveyance in question was a valid transfer under Texas law and that there are no statutory restrictions on the transfer of property to minors in the State of Texas.

On November 10, 1998, Aminta O~ filed an initial claim for SSI benefits. Mrs. O~'s claim was denied on May 3, 1999, due to excess resources in the form of real property valued at thirty thousand dollars ($30,000.00). On May 25, 1999, Mrs. O~ requested a reconsideration of her denial determination on the grounds that she had disposed of her property and no longer exceeded the resource limit for SSI eligibility. At that time, Mrs. O~ furnished documentary evidence that she had transferred her real property to Ramiro O~ III, Mrs. O~'s three-year-old grandson.

As you are aware, the present case involves a conveyance of real property by a "deed of gift." A deed is an instrument by which an interest in land is conveyed or transferred from one person (the grantor) to another (the grantee). See Tex. Prop. Code Ann. § 5.021 (Vernon 1984). Although a deed must have certain formal elements, it is important to recognize that a deed is not a contract, nor is it required to have many of the elements of a contract. For example, under Texas law there is no requirement that the grantee of a deed give either his acceptance (by signature) or consideration. See Austin Lake Estates Recreation Club, Inc. v. Gilliam, 493 S.W.2d 343 (Tex Civ. App. 1973), citing, Burgess v. Hatton, 209 S.W.2d 999 (Tex. Civ. App. 1948); Tex. Prop. Code Ann. § 12.001(b). Thus, a gift deed is entirely valid.

Additionally, a valid deed of conveyance requires only that the grantee exist and be legally capable of accepting the deed and of taking and holding title to the property. See Wilson v. Dearing, 415 S.W.2d 475, 477 (Tex. Civ. App. 1967); Johns v. Wear, 230 S.W. 1008, 1009 (Tex. Civ. App. 1921). Thus, for example, property cannot be conveyed to either a deceased or fictitious person. See Johns, 230 S.W. at 1009; 30 Tex. Jur. 3d Deeds § 18 (1999). However, an individual is not considered incapable of taking title to land by mere reason of his lack of capacity to contract (mental incompetence) or because he has not yet attained the age of majority. See, e.g., Johnson v. Morton, 67 S.W. 790 (Tex. Civ. App. 1902); 42 Am. Jur. 2d Infants § 8, 61, 75. Under Texas law, the grantee may be a minor, as in this case, or any other person in any station of life. See Johnson, 67 S.W. at 790; see also Harold F. Thurow, Real Estate Law of Texas (1985).

As noted, Texas law specifies that a valid deed conveying title to real estate must have certain characteristics: it must be in writing; it must specify a grantor and grantee; it must contain an adequate description of the property to be conveyed; it must be signed by the grantor; it must be acknowledged before a notary public if it is to be recorded; and, there must be delivery of the deed by the grantor to the grantee. See Tex. Prop. Code Ann. §§ 5.021-.022, 12.001. Here, the deed at issue specifies the grantor and grantee, it contains the requisite property description, and it is signed by the grantor. Although it is apparently not an issue here in light of the facts you have provided, we note that to be operative as a transfer of the ownership of land, a deed must be delivered; it is delivery that gives the instrument force and effect. See Wilson, 415 S.W.2d at 479; 30 Tex. Jur. 3d Deeds §§ 30, 45. The intent of the grantor is usually determinative on the issue of whether delivery has actually occurred. Id.; see also, R. Bernhardt, Real Property (1981). Assuming that delivery of the deed w