Capacity: Overview

If there is no suggestion or proof to the contrary, you may assume that a grantor is of legal age and is mentally competent to convey title to real property. If the grantor is not of legal age, but is married, the act of marriage may remove the disability of minority and a deed executed by such married person would have the same effect as if the person were of legal age. However, marriage cannot be relied upon to give validity to an incompetent or minor grantor. A guardian or conservator must be appointed according to state law. The fact that a grantee may not be of legal age or is mentally incompetent has no effect on the conveyance by grantor, in that it is not a requirement for a valid deed that the grantee must be of legal age. An evaluation of representatives of an incompetent or minor must be made by reviewing the applicable trust document, order of appointment, letters or authority or power of attorney to determine that such individual has the authority (legal capacity) to execute the requisite deed or mortgage on behalf or a minor or incompetent person.