The estate of a deceased spouse -- who has left a will -- normally passes through probate. The executor generally sees to the transfer of all property to his chosen beneficiaries. If your spouse did not leave a will -- but the deed is in both your names as joint tenants with rights of survivorship -- revising the deed follows clear procedures. Take the original deed -- and the death certificate -- to the deed recorder in the county where the property is located. Texas has provisions in place if the property is not held in joint tenancy, and the spouse left no will.
Download a format for an “Affidavit of Heirship” from an Internet legal-form service. A guideline for writing this affidavit is located in Texas’ Probate Code, Section 52A.
Read More: How to Remove Deceased Spouse from a Deed Form
Complete the affidavit. Arrange for two people to act as witnesses, and sign it. It states that the witnesses knew your spouse, and that they have nothing to gain financially from the transaction. It states when and where your spouse died, and the names of all other family members and heirs.
Make an appointment with an attorney experienced in probate law. You need not retain someone to handle the process of changing the deed, but have the affidavit reviewed by someone knowledgeable. Ensure that you meet all legal requirements in preparing the affidavit.
Prepare a new deed that titles the property in your name alone. Use a form for a special warranty deed, or a deed without warranties. Download these deeds from an Internet legal-form service. Do not use a quit-claim deed format, because some title companies in Texas will not insure them.
File the affidavit -- and the deed -- with the deed records department in the county where the property is located. Title to the property changes from the name of your deceased spouse to your name when the clerk records the documents.
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 his 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.
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.
- 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.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.