Legal: Real Property of Deceased Spouse

In my practice, certain basic questions appear again and again regarding the actual passing of title to real estate after a spouse dies.  This article endeavors to answer a few of those questions.

Does real property automatically change title to me when my spouse dies when I have his/her estate probated?  The answer to this question is NO except as cited below.

In the most common cases, the will appoints an executor to conduct the business of the estate.  Conducting business includes collecting the property of the decedent’s estate, paying or settling outstanding debt and distributing the balance to the heirs.  

If there was no will, these duties may be performed by an administrator approved by the court.  The executor under a will or the administrator, if there was no will, performs the same types of tasks.  The documents which evidence the right to conduct business on behalf of the decedent are “letters testamentary” or “letters of administration.”

Letters testamentary or letters of administration, hereinafter called collectively “letters testamentary,” place the authorized person in approximately the same position in dealing with the decedent’s property as the decedent enjoyed during his/her lifetime.  The executor/ administrator is charged with following the instructions in the will, if applicable, or the heirship order of the court.

Letters testamentary do not magically transfer property to the proper parties.  They only clothe the representative with the authority to transfer property.

In order to transfer real property, it should be done through a deed.  This type of deed is often called an “executor’s deed.”  These deeds recite a gift through inheritance as consideration for the transfer and are signed by the executor/administrator in their official capacity as authorized representative of the estate.

ALERT!!! – Unfortunately, a few executors or administrators do not timely exercise their right/duty to pass title to real property.  When transfer is not made before the executor dies or before the estate is closed, it may be necessary to resubmit the estate to probate in order to have the court appoint a new executor/administrator.  This failure to timely pass title will almost certainly cause additional and unnecessary time and expense for the subsequent heirs to the property.  

If there is no need for an administration because there is no business to be conducted by the estate, the probate procedure that may be used is a “muniment of title,” or if there is no will, a “declaration of heirship” without administration. These types of probate procedures rely upon a copy of the will (if applicable) coupled with an order from the court admitting the will to probate as a “muniment of title” or a court order declaring heirship. These orders sanctioned by the court will complete the chain of title and effectively pass title to the beneficiaries named in the will.  

My spouse and I are both on the deed to my home, so do I still need to file a probate proceeding after my spouse dies to place title completely in my name? 

Yes, a probate procedure is needed, unless a Transfer on Death Deed or other survivorship instruments are in place.

As a married couple (under normal circumstances), each of you owns an undivided interest in one-half of your community property, including your home.  That one-half interest, previously owned by the deceased spouse, does not automatically vest in the surviving spouse even if both names are on the deed.  The court must establish through a probated will or through intestate succession how the title to decedent’s one-half of the community property passes.

If the surviving spouse chooses not to probate the deceased spouse’s estate, then after the second spouse dies, it will become necessary to settle the estate of the first to die along with the estate of the second to die.  In addition to doubling the time and expense to your heirs, it can be a very complex and thorny problem if either of you have had children from a prior relationship.

Are there special problems if the deceased spouse has children from a previous marriage?  Yes, even if there is a valid will, if it is not timely offered for probate (i.e. within four years) pursuant to Texas Estates Code §251.051, the estate cannot be settled until each of the children from the prior marriage is made part of the probate proceeding.  This includes children that you may or may not know or that may or may not have been in contact with their deceased parent since birth.  As you can imagine, even from the standpoint of logistics, this can cause huge problems as well as completely unintended results  Among those unintended results can be the fact that those children will own a one-half interest in the surviving spouse’s home by virtue of the deceased spouse’s community property estate.

There is a simple and relatively low-cost way to avoid these unintended consequences.  The solution is to make sure that your spouse has a valid will before they die and for you to offer it for probate in a timely fashion.

Passing title to real property at time of death is a complex subject, and no attempt has been made to cover all of the circumstances that may arise.  As always, you would be well served by contacting an attorney of your choice who is familiar with probate matters.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see www.houstontxprobate.com.