Transferring Real Estate Titles Without a Will
“How do I transfer a real estate title without a will? I’m supposed to get it, can’t I just change the deed to my name?” It’s not quite that simple…
You’re the heir to some real estate – but there’s no last will
“A family member died. They didn’t have a will, and I’m supposed to get their real estate. Now how do I get that property in my name?” We get this question a lot. A family member has passed, we think we know who those heirs are, and how do we get the property in our names?
The simple answer seems like, Well, we just need an updated deed and then we can transfer property. Here’s the problem. A deed can only be signed by somebody who is authorized to operate on behalf of that person who’s legally authorized to own that property while you’re alive.
Sure, that’s your property and you can give it away to anybody you want, but once you have passed away, your family members can’t just come in and say, “Oh, well, John’s gone. John wanted me to have that property.” Well, how do you prove that?
You can’t just file a new deed
Texas law doesn’t let you just file a deed, especially when there’s no last will. If there’s no last will, we’re going to have to jump through the probate process, including getting a declaration of airship. This means we will have a court proceedings to determine who the legal heirs of that deceased person are.
This is a procedure that takes about six months in a good case here in Harris County or Houston, Texas. In other counties, you may be able to move faster or possibly slower, depending on what’s going on there. This is not a case where even if you know you’re the only child of the person who died, you’re not gonna be able to just sign a deed and put the the property in your own name. You’re gonna have to jump through this procedure.
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What about other options?
Small Estate Affidavit
Unfortunately, if you are not the surviving spouse or a minor child (somebody under 18), we cannot use a small estate affidavit to transfer title to real property in Texas. If you are, then this might be an easy route for you.
Affidavit of Heirship
An affidavit of heirship is something we use occasionally, but only when we’re not thinking we’re gonna have to transfer title to the property for several years. The good news is, hey, you may be able to avoid some probate headaches if we know who the heirs are, and you can sign under oath who all of those heirs are.
You need to have some people who are not interested, so not, you know, don’t come in just saying, Hey, I’m mom’s only heir and I’m gonna sign this affidavit of heirship. You want some other people who are putting their name and reputation on the line to say, Yes, this person’s mother has died and this is the only heir.
if they are signing something that is not true, you know, they’re, they’re only acknowledging one of the children and not both of them. All three people are potentially on the hook for perjury. They have signed something that they know is false under oath. That could get a lot of people in trouble. So we’re not gonna have anybody sign that.
Really that affidavit of heirship is not the best option. The problem you’ll run into is that a title company will look at that and they may say, “This just isn’t good enough for us to work with. We want you to have something more concrete in place.” And that this is where they really prefer an airship.
Proceeding followed by an executor or an administrator’s deed, there wasn’t a will or if there was a will. Then seeing the probate of that will, and then an executor or administrator’s deed showing transfer of the title to that property out of the estate, not only does it show that somebody had the authority to sign on behalf of the deceased person, it’s also showing that there are no d uh, there are no debts associated with that.
So unfortunately when somebody dies and they still own property, there is not a quick fix, especially if there is no last will. If you don’t have a last will. We’re gonna be going to court in almost every case. If there is a last will, there’s some options. We may need to do a full administration. We may be able to get by with just a minimum of title, but ultimately, when somebody dies, if they owned real property, we are going to court for one thing or another.
As we near the end of 2022, there are certain things we can can be doing (or at least be aware of) to help lighten the upcoming tax burden before the year is over.