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
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 was actually made to the grantee, it is our opinion that the deed here
at issue contains all necessary elements and fully complies with the general requirements
for a valid transfer of realty in the State of Texas.