Assets passing through your will pass through probate. It is a public process. Some may desire a more private process. Generally only very specific assets pass outside of probate such as 401(k)s, IRAs, community property, assets in a living trust – just to name a few. Effective September 1, 2015, this new law permitting Texas Transfer on Death Deeds can help real property pass outside of probate as well.
A common question about the new law is whether married couples should file such a deed. Texas is a community property state, so any community property owned by the couple passes outside of probate automatically to the surviving spouse. Generally, as long as a married couple has an updated will, a transfer on death deed is of less importance in regards to the community property. However, if a spouse dies intestate (without a will), the surviving spouse has to file additional paperwork and a transfer on death deed could make the process easier.
This law is of particular importance to single individuals and married couples possessing separate real property who wish for their real property to pass outside of probate.
Some quick facts about the Texas Transfer on Death Deed:
1) It must contain a description of the property
2) Name one or more beneficiaries
3) Each beneficiary must be a person
4) Must be recorded with the County Clerk in the same county that the property is located
5) Beneficiary must survive grantor by 5 days
6) Grantor must sign (no powers of attorney are permitted)
7) The Transfer on Death Deed trumps any instructions within a will concerning the same property
8) The Transfer on Death Deed does not negate the need for a will
9) It can be revoked at any time during the life of the grantor by signing a separate document expressly revoking it, or by signing a new Transfer on Death Deed that revokes the prior one. Either method must be signed, notarized and recorded in the same county where the revoked deed was recorded
10) The deed does not release the real property from claims of creditors, liens, mortgages, or judgements
1 – “Transfer on Death Deed – Answers to Frequently Asked Questions.” Texaslawhelp.org
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