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It helps you organize your assets, identify potential probate risks, and think through your options before meeting with an attorney.
A married couple may live in the same house for 20 or 30 years, make the mortgage payments together, pay taxes from a joint account, and think of the property as “our home.”
Then one spouse dies, and the family discovers that only the deceased spouse’s name appears on the deed.
Does the surviving spouse automatically own the house? Must the will be probated? Can the surviving spouse sell or refinance it? Do the deceased spouse’s children receive an interest?
In Texas, the answer usually depends on more than the name printed on the deed.
Start With the Current Deed
The first step is to obtain the most recent recorded deed from the county property records.
The deed can show:
- Who received title to the property
- When the property was acquired
- Whether both spouses were named
- Whether special survivorship language was used
- Whether the property was later transferred to a trust
- Whether a transfer-on-death deed or other later instrument was recorded
The county appraisal district’s website may help identify the property, but its ownership listing isn’t a substitute for reviewing the recorded deed.
The deed provides the starting point. It doesn’t always provide the final answer.
One Name Doesn’t Always Mean Separate Property
Texas is a community-property state. Property acquired during marriage is generally presumed to be community property unless there is evidence showing that it is separate property. Separate property can include property owned before marriage or received during marriage by gift or inheritance.
That means a house purchased during the marriage may have a community-property component even when the deed names only one spouse.
On the other hand, a house that one spouse owned before the marriage may remain that spouse’s separate property. Payments made during the marriage, improvements, refinancings, marital agreements, and later deeds can complicate the analysis.
Families shouldn’t assume that the name on the deed settles the community-versus-separate-property question. The purchase history and source of funds may also matter.
The Will Still Matters
A common belief is that a surviving spouse automatically receives everything. Texas law doesn’t make that promise.
A will may leave the deceased spouse’s interest in the house to the survivor. But a won’t transfer title on its own. It generally must be admitted to probate before it can be used to establish the new ownership of probate property.
The will should be reviewed for:
- Who receives the deceased spouse’s interest
- Whether the surviving spouse receives the property outright
- Whether the house passes into a trust
- Whether children or other beneficiaries receive an interest
- Who is appointed executor
- Whether independent administration is authorized
A family may have a signed will and still need a probate proceeding to clear title to the house.
What Happens Without a Will?
When someone dies without a valid will, Texas intestacy law determines who inherits that person’s property.
For community property, the surviving spouse generally receives the deceased spouse’s share when the deceased spouse has no surviving descendants, or when all surviving descendants are also descendants of the surviving spouse.
The result can change when the deceased spouse has a child or other descendant who isn’t also the child or descendant of the surviving spouse. In that situation, the deceased spouse’s community-property interest may pass to the deceased spouse’s descendants instead of entirely to the surviving spouse.
This is one reason blended families face special risks.
A surviving spouse may continue living in the house while the deceased spouse’s children own part of the underlying title. That divided ownership can create problems years later when someone wants to sell, refinance, take a loan against the property, or transfer it into a trust.
Separate real estate is subject to different intestacy rules. When a married person dies without a will and leaves descendants, the surviving spouse may receive a life estate in one-third of the separate real property. In contrast, the descendants receive the remaining interests. The exact result depends on the family structure.
Homestead Rights and Ownership Aren’t the Same
A surviving spouse may have significant Texas homestead rights even when the spouse doesn’t receive full ownership of the house.
Those rights may allow the survivor to remain in the homestead, subject to applicable legal requirements. But a right to occupy the home doesn’t necessarily mean the survivor holds full, marketable title.
This distinction may not cause an immediate problem. It often surfaces later.
The surviving spouse may live in the house for years and continue paying the taxes, insurance, and mortgage. The title problem becomes visible only when the survivor tries to:
- Sell the property
- Refinance a loan
- Obtain a reverse mortgage
- Transfer the house to a trust
- Sign a transfer-on-death deed
- Leave the property to children under a new estate plan
Texas law provides that a decedent’s homestead descends and vests like other real property, but it remains subject to the surviving spouse’s homestead rights.
A Mortgage Doesn’t Determine Who Inherits
The deed and the mortgage perform different jobs.
The deed concerns title and ownership. The promissory note and deed of trust concern the debt and the lender’s security interest.
A spouse may be liable on the mortgage even if not named on the deed. A spouse may also appear on the deed without being personally liable on the note.
After a death, the family needs to determine both:
- Who inherited the deceased owner’s interest?
- Who is responsible for dealing with the existing loan?
Continuing to make mortgage payments may prevent default, but payment alone doesn’t place the surviving spouse’s name on the title.
What Can Be Used to Clear the Title?
The proper method depends on the deed, the estate plan, the property’s character, the estate’s value and debts, and the surviving family members.
Possible procedures may include:
- Probating the will
- Using a muniment-of-title proceeding when legally available
- Completing an heirship proceeding
- Recording an affidavit of heirship
- Using a small-estate affidavit in a qualifying estate
- Administering property under a revocable living trust
- Presenting a valid survivorship agreement
- Recording documents connected with a transfer-on-death deed
Not every option works in every case. For example, Texas limits the circumstances in which a small-estate affidavit can transfer a homestead. An affidavit of heirship may provide useful evidence, but it isn’t a substitute for a court determination in every situation.
Questions Families Should Ask Now
Married couples shouldn’t wait until death to learn how their house is titled.
Review these questions while both spouses can find records and explain what happened:
- Do we have a copy of the current recorded deed?
- Is the house in one name or both names?
- Was it purchased before or during the marriage?
- Was any part of it inherited or received as a gift?
- Have we signed a later deed that may not have been recorded?
- Does either spouse have children from a prior relationship?
- Does our will match what we want to happen to the house?
- Are we relying on survivorship language that actually appears in a valid recorded document?
- Would probate be required under our present plan?
- Could a trust, transfer-on-death deed, enhanced life estate deed, or survivorship agreement better fit our goals?
Texas permits spouses to create a written community-property survivorship agreement and recognizes transfer-on-death deeds when the statutory requirements are satisfied. These tools require careful preparation and shouldn’t be treated as interchangeable.
Not sure what property or account information your family would need after a death?
Download the Texas Probate Workbook to organize deeds, accounts, beneficiary information, debts, and other records before they are needed.
Review the House Before It Becomes a Probate Problem
The worst time to discover a title problem is after one spouse has died.
A deed review may confirm that the existing plan works. It may also reveal that the house will require probate, create shared ownership with children, or pass differently than the couple expected.
My office helps Texas families review deeds, wills, trusts, beneficiary arrangements, and probate-avoidance options. Consultations are available by phone, Zoom, or in person.
If you’d like, you can schedule a consultation to review your situation, clarify your options, and decide what kind of plan makes sense for your family.
Schedule a private consultation with Harvey L. Cox today.
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This article provides general information about Texas estate planning law. It isn’t legal advice for any particular person or situation.