After a property owner dies, the new owner should file a new deed in the county where the property is located. If there is a will in place before the owner’s death, the real property will go to the people named as beneficiaries in the will. If there is an estate planning deed, such as a life estate deed, Lady Bird deed or Transfer on Death deed (TODD) filed with the county, the title will go to the parties named in the deed.
If a survivorship agreement for joint property owners exists, the property will automatically transfer to the surviving owner. A person who wants to pass on property should consult an attorney experienced in estate planning.
What Is Real Property?
Real property includes land, home, buildings, uncut timber and mineral rights. It does not include vehicles, china, clothing, jewelry or items inside the home. Items that are installed or secured to real property, like built-in washer and dryer units, typically stay with the home. Items that are freestanding, like freestanding washer and dryer units, are not included in the transfer of the real estate.
Transfer by Will
When a property owner created a valid will before they passed, the choices are to probate the will or use an Affidavit of Heirship to establish heirship. The affidavit is a sworn statement to determine the heirs of the deceased. Using an affidavit of heirship is the more economical option; the average cost of probating a will can run between $3,000 and $5,000.
The first step before filing is to complete the affidavit. Two people who knew the deceased and do not have a financial interest in the transfer must act as witnesses. They must sign the affidavit in front of a notary public, who notarizes the document. The beneficiary should then have an attorney review the affidavit.
Preparing a New Deed
Next, the new property owner should prepare a new deed that puts the title of the property in their name. It is preferable to use a form for a special warranty deed or a deed without warranties. The new owner should avoid using a quitclaim deed. (It may be harder to get this type of property insured.)
The new owner should file the affidavit and deed with the real estate department in the county where the property is located. The title to the property will change when the clerk records the documents.
Estate Planning Deeds
A property owner creates a life estate deed, Lady Bird deed or Transfer on Death deed (TODD) in their lifetime. These types of deeds transfer the property to the person named as the recipient in the deed. This avoids the necessity of going through a probate proceeding. The statutes relating to these three types of deeds are found in Chapter 114 of the Texas Estates Code.
When a property owner creates a life estate deed, as the life tenant they retain possession until their death when the beneficiary becomes the owner. The life tenant is responsible for maintenance, property taxes and insurance while they are alive. In a standard life estate deed, the life estate tenant cannot sell or mortgage the home without the consent of the beneficiary. The life tenant can cancel the deed or change the beneficiary.
A Lady Bird deed is also known as an enhanced life estate deed. It offers more freedom than a traditional life estate because the life estate tenant can sell or mortgage the property during their lifetime. A life estate tenant may be liable to the beneficiary if they substantially decrease the value of the property.
Naming a Beneficiary in the Deed Records
A TODD requires the property owner to name the beneficiary in the deed records. A TODD must be signed and filed before the owner’s death in the deed records in the county where the property is located. After the property owner dies, the beneficiary should file an affidavit of death in the deed records.
Survivorship Agreements and Community Property
Two or more individuals can have an agreement in place that allows them to hold property jointly and concurrently, with each party holding a right of survivorship. When an owner passes, the other parties have the right to retain ownership of the property. A community property survivorship agreement is an agreement between spouses that creates a right of survivorship in community property, such as a home bought during the marriage.
Laws relating to community property survivorship agreements are located in Chapter 112 of the Texas Estates Code. A survivorship agreement cannot be inferred simply because an account is a joint account or the account is designated as JT TEN, Joint Tenancy or joint, or has similar language in its description. A survivorship agreement of any sort can help the new owner avoid the probate process.
Texas Law If Nothing Is in Place
When a property owner dies without a will, estate deed or survivorship agreement, their property will pass in accordance with the intestacy statutes. These laws are stated in Chapter 201 of the Texas Estate Code. It is likely that the state of Texas will require the estate to be probated.
What property goes through the Texas probate process depends on the value of the estate and the property in the estate. Certain property, like bank accounts and life insurance proceeds, will not need to go through the probate process.
Distribution of Property for Intestate Estates
If the person who passed, also known as the decedent, was married, the surviving spouse usually is the first to inherit. This depends on whether or not the deceased had any children and whether or not the children are from the marriage with the surviving spouse. If an unmarried person without children dies without a will, the estate passes first to their parents in equal parts, if the parents are still alive.
If the unmarried, childless person had surviving parents and surviving siblings or descendants of siblings, the decedent's surviving parents receives one-half of the estate. The remaining one-half is divided among their siblings or descendants. If the unmarried, childless person had no parents, all of the estate passes to their siblings or descendants of siblings. If a single person with children dies without a will, all of their property passes to their descendants.
The Community Estate
A community estate is the community property that remains after a spouse passes. If a married person dies without a will, their surviving spouse inherits all of their community estate if all of their children are also the children of the surviving spouse. If all of the children are not the children of the surviving spouse, the spouse keeps one-half of the community estate while the other half passes to the children.
If the married person did not have any children, the surviving spouse inherits all of the community estate. When a property owner is married but has no children, their surviving spouse receives one-half of their separate real property. Separate property is property that a spouse owned before the marriage existed or property they acquired during the marriage by gift or inheritance.
The other half of the deceased person's separate property passes to the deceased owner’s parents, siblings or descendants of siblings. A parcel of real property can be separate property. If a party was married and had children, the surviving spouse receives a life estate in one-third of the separate real property of the decedent, or person who passed.
Filing Property Documents
An individual who wants to file real property documents like a TODD should do so with the county in which the real property is located. There is a filing fee for such documents, typically a higher amount for the first page and a lower amount for each additional page.
A county’s real property department typically can accept only original documents or certified copies of court documents for filing in person, by mail or electronically. A county real property department will not accept Xerox copies for filing. All signatures on the paperwork must be original.
A person cannot file an original will in real property records. If the property owner has died and the estate has been probated, the probate court can issue a certified copy of the will. This copy can be filed with the real estate department’s records. A will can be submitted as an exhibit to an affidavit of heirship.
Small Estate Affidavit
An heir may file a small estate affidavit for certain types of property, like the property owner’s homestead, to avoid going through probate. A homestead is the place of residence for the deceased property owner. It is required for a small estate affidavit that the property owner not have made a valid will.
A small estate affidavit must be sworn to by two people who are not heirs of the estate, as well as each beneficiary who has legal capacity. The real property and a legal description of it needs to be listed in the affidavit with other assets of the property owner. After a judge approves a small estate affidavit, a certified copy of the affidavit and the court order approving it should be filed with the county’s real estate department.
An Affidavit of Heirship only transfers title of the property if your spouse owned nothing more than the real estate and had no debts. If the estate is more complicated, file a Small Estate Affidavit with the probate court in the county where he died. It is very similar to an Affidavit of Heirship. This option is available if his other assets are worth less than $50,000. Estates larger than this must generally go through probate to transfer title of property.
- Texas Estates Code: Chapter 114, Transfer on Death Deed
- Harris County Clerk: Real Property
- Texas Estates Code: Chapter 112, Community Property With Right of Survivorship
- Texas Estates Code: Chapter 201, Descent and Distribution
- Harris County: Small Estate Affidavit Instructions/Guidance
- Texas Estates Code: Chapter 205, Small Estate Affidavit
- If your spouse did not leave a will, the state of Texas probates and distributes his property according to its laws of intestacy, a prescribed list of immediate relatives with the right to inherit. A spouse usually is the first to inherit under this formula, depending on whether or not the deceased had any children, and whether or not they were from the present or a former relationship.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.