This spooky season is the best time to bring up the dark topic of death. Particularly how it relates to real estate.
Many times, I’ve heard homeowners say, “I should probably do — blank — in case something happens to me.” Time to get real. It’s not if something happens to you, but when something happens. That something is dying. And we’re all going to do it.
A deed transfers real estate and a deed must be signed by a living person. When a property is held in the name of a deceased person, a probated will, court order, or Affidavit of Heirship is required to determine heirship and who can sign a deed to transfer a property.
Typically, when a homeowner dies, their property passes to their heirs immediately upon death unless there is a will or estate plan. However, transferring ownership and the title requires documentation that must be filed in county records.
In Texas, the deceased property owner’s name must be removed in order to transfer a deed and the new owners of the property must be identified. This can be done at the same time the property is being sold, but it takes additional time and documentation.
Removing a deceased owner from the deed can be simple or very complex. The situation varies and there is no one-size-fits-all answer to transferring a deed after death.
Where There’s a Will, There’s a Way …
In Texas, we have state laws that govern how a deceased owner’s property passes. The easiest way is with a probated will. Without a probated will, the Texas Estates Code is followed.
The number of Texans who die without a will is astonishingly large. In Texas, a Transfer on Death Deed (TODD) allows a property to pass to another person without a will. But those types of deeds are rare.
In many situations, the heirs are the surviving spouse or children of the deceased. However, it can also be a charity, church, or a friend of the deceased. Regardless of who the heirs are, heirship must be determined before the property may be sold. Sometimes the heirs and would-be sellers must hire an attorney to help settle ownership rights.
A court order or affidavit does not transfer the title of the house. A deed must be properly signed, notarized, and recorded with the county to transfer ownership.
Proof of Death
The title company may require a copy of the death certificate, obituary, and an Affidavit of Heirship. An Affidavit of Heirship is a sworn statement to identify heirs. It is a legal document recorded in the county records. Once recorded, it removes the deceased’s name from the property title and shows the heirs as the owners.
There are risks involved for the title company when transferring a deed after someone has died. The title company will confirm a probated will or heirship affidavit, rights of signatories, creditor’s rights against the property, and heirs who must sign documents.
How a property passes after death can be a trick or a treat for those who inherit it – depending on how the homeowner prepares for the inevitable.
