Today we revisit the sad saga of Carol (may she rest in peace), her grieving spouse David, and the Texas residence that was titled in both of their names as joint tenants. David, if you recall, had erroneously assumed that as a joint tenant he would automatically own their homestead outright when wife Carol died.

So misguided.

While the stars may ultimately align in such a way that David does end up owning the property outright, that result is not the product of the wording on the deed. Instead, David’s ownership will come from Texas intestacy laws, a probated will, or some other document. Even if he ends up owning the property he may still have a title problem, meaning that his ownership is not clearly reflected in the county’s real property records. Title insurance companies do not issue title insurance when there is a title problem, and buyers rarely purchase real property without title insurance.

What could Carol and David have done to have prevented this problem with their homestead?

Lots of things. Carol could have left a valid will. David and Carol could have formed a living trust and transferred ownership of the residence into the trust during Carol’s lifetime. Carol could have signed a Transfer on Death Deed and recorded it in the deed records. David and Carol could have signed a community property survivorship agreement.

What steps should David have taken after Carol died?

If she left a valid will, then David should have probated it within 4 years after her death.

There are several types of probate. If there were no unsecured debts and the real property was the only issue to resolve, David could have probated the will as a muniment of title. Otherwise, he should have opened an independent administration so he could sign an executor’s deed to himself.

  • If Carol left a recorded Transfer on Death Deed, then David could have filed an affidavit in the
    county deed records.
  • If the property were in a trust, then the trustee (most likely David) would handle the property
    as part of the trust. No probate action would be needed.
  • If Carol died without a will, then David could have gathered all of her heirs at law and have
    them sign Affidavits of Heirship, which would then be filed in the deed records.

Warning: the title company may not accept the Affidavits as conclusive. If Carol died without a will, then David could have filed an heirship proceeding in court. This requires appointment of an ad litem and a full court hearing. David may also have to request that the court open a probate administration so the administrator can deed the property to him.

What is normally done? Most married couples handle the problem by probating a will. Texas has an extremely simple independent administration system for probate. Some couples go the living trust route. Others prefer the Transfer on Death Deed because of its simplicity.

The only completely unacceptable plan? Doing nothing.

Virginia Hammerle is a licensed Texas attorney. Her practice includes estate planning, litigation, guardianship, and probate law. See for her blog and newsletter sign-up. This column does not constitute legal advice.