Why a Confirmatory Deed Is Superior to an Executor's Deed for Specifically Devised Property in a Solvent Estate

In my previous blog post, I shared insight from a New York lawyer that suggests the use of a confirmatory deed instead of an executor's deed for a specific devise.

Someone replied to me, "You do it your way. I will do it my way. Title companies don't complain when I record an executor's deed for specifically devised property in a solvent estate."

My Reaction (In Jest)

Sophistic (and relativistic) arguments are alive in the 21st century, but they frustrate me when it comes to the law. If doing things that are contrary to the law doesn't matter, then why have a conversation?

My Reaction (Seriously)

If lawyers don't see the value of a confirmatory deed in lieu of an executor's deed in an easy case, then they cannot see how a confirmatory deed can be used creatively under the right facts in a more complicated case.

My thoughts about using confirmatory deeds are:

1. Since title vests immediately upon death and a deed is superfluous, the devisee/distributee signs the confirmatory deed as the grantor before and after probate/administration. The grantee is also the devisee/distributee. Same parties on both sides.
2. If the executor/administrator takes control of the property, then the executor/administrator should be the grantor on the deed. Also, in such a case, the deed would not be for $0 consideration.

Hypothetical

I think that we can understand the purpose and potential of a confirmatory deed by examining easy facts and asking questions. (Appropriately, I am taking a Socratic approach to a sophist response.)

Hypothetical Facts:

• (F1) Estate is solvent.
• (F2) Real property is specifically devised.
• (F3) Devisee is not a remainder beneficiary. (Note: This fact is important for Q5, below.)

Questions re Facts:

• (Q1) Do you record an executor's deed? Why? (Notes: Under Facts 1-3, it is superfluous. In my experience, title companies in New York don't care for it one way or another because they conduct a search in Surrogate's Court.)
• (Q2) Did you know that under these facts the executor's deed is not passing title? (Note: I just want to make sure we're on the same page with our understanding of immediate vesting and a superfluous deed for a specific devise.)
• (Q3) If you record an executor's deed, under what authority are you doing so? Did the executor get authority under NY SCPA Article 19? If no, then why is the executor the grantor? (Note: The estate is solvent under Fact 1.)
• (Q4) Is the deed for $0 consideration? Should executors sign zero consideration deeds?
• (Q5) Who pays for the executor's deed? The specific devisee? The residuary beneficiaries? All of them? (Note: This question is in bold because it is my favorite so far.)
• (Q6) Since the executor just did something that superficially looks like taking control of real property and transferring title, is the executor now entitled to commissions? (Note: This is a trick question because the answer is crystal clear under the law in New York, but it's still worth asking because I wonder if people are doing it the wrong way.)
• (Q7) Are you comfortable having the executor as the grantor of the deed under Facts 1-3? (Note: There is no wrong answer because the question is about feelings, not the law. But I would like an answer before we add some facts below.)
• (Q8) I understand that before reading the previous post you might have been OK filing an executor's deed at $0 consideration solely to record the transfer of title, but are you still going to do things the same way now that you know of a better way – the confirmatory deed? If yes, please explain why.
• (Q9) As the lawyer, who is your client? The executor? The devisee? Both? Who are you advising to (1) record a superfluous deed and (2) have the executor be the devisee? Stated another way, since the property vested upon death in the devisee and the executor under Facts 1-3 has no authority over the property, did the devisee accidentally become your client?
• (Q10) Do the residuary beneficiaries have a claim against the executor or the executor's attorney for reducing their distribution just to file a superfluous executor's deed? (Note: There might be a potentially lucrative business for someone to represent the residuary beneficiaries and sue executors and their attorneys in small claims court to recover the misallocated funds.)

Scenario with additional facts:

• (F4) An attorney assisted the executor in recording an executor's deed under Facts 1-3.
• (F5) A good faith purchaser enters into a contract with devisee to purchase the property.
• (F6) The purchaser claims there is a problem with title and refuses to close on the contract and demands a refund of the deposit.
• (F7) Devisee/seller commences a specific performance action and purchaser countersues for rescission of contract and refund of deposit.
• (F8) After years of litigation, the purchaser prevails because the decedent had forged the deed.

Questions:

• (Q11) Is the executor liable under these additional facts for recording the deed as the grantor to the devisee as the grantee? (Note: I don't know the answer and would have to look it up.)
• (Q12) Is the attorney who assisted the executor open to a malpractice suit? (Note: I don't know the answer. I think it would depend on the answers to Q9 and Q11.)
• (Q13) With a scenario such as this being possible, are you still comfortable recommending to your executor/client to record a superfluous executor's deed under Facts 1-3? (Note: Under Facts 1-3, title agents will not complain if you record no deed whatsoever. The deed is superfluous. I asked several title agents in NYC and they uniformly said they search the Surrogate's Court in addition to ACRIS.)

So under the hypothetical facts, once a decision has been made to record a document in the chain of title record to show that the devisee now owns the real property, the ultimate question is between two superfluous deeds: One that is clearly wrong under the law (the executor's deed) and the other that is not (the confirmatory deed). Both deeds are called "deeds," but they don't transfer title.

If, after these questions, someone is still comfortable doing things the old way -- recording an executor's deed for a specific devise when the estate is solvent -- then I need to find a way to bottle their mindset into a pill that I can take. I honestly would like that type of comfort.