When a property owner passes away, the transfer of ownership depends on several factors, including whether the deceased had a will, the type of property ownership, and Texas estate laws. Navigating the process can be complex, especially when multiple heirs or legal complications arise.

This article outlines how real estate transfers after death, the role of probate, and what happens when there is no will.

Does the Property Go Through Probate?

In many cases, real estate passes through probate, a legal process that validates the deceased's will (if one exists) and ensures debts and taxes are settled before distributing assets to heirs.

• If there is a will: The executor named in the will oversees the process, ensuring the property is transferred to the designated beneficiaries.
• If there is no will (intestate succession): Texas intestacy laws determine who inherits the property, typically prioritizing spouses, children, and other close relatives.

Some assets avoid probate, such as property held in a living trust, jointly owned property with rights of survivorship, or assets with a designated beneficiary (like a Transfer on Death Deed).

How Property Transfers Based on Ownership Type

The method of property transfer depends on how the owner held the title:

1. Sole Ownership

If the deceased was the sole owner, the property would pass through probate unless covered by a non-probate transfer method, such as a Transfer on Death Deed (TODD).

2. Joint Tenancy with Right of Survivorship

If the property was jointly owned with rights of survivorship, it automatically transfers to the surviving owner(s) without going through probate.

3. Tenancy in Common

When property is owned as tenants in common, the deceased's share is distributed according to their will or intestate succession laws if no will exists.

4. Community Property with Right of Survivorship (Texas-Specific)

In Texas, a married couple may hold property as community property with the right of survivorship, meaning the surviving spouse automatically receives full ownership upon the other spouse's death.

What If There Is No Will? (Intestate Succession in Texas)

When someone dies without a will, Texas intestacy laws dictate who inherits the property:

• If married with children: The surviving spouse typically receives a share, while the rest is divided among the children.
• If unmarried with children: The entire estate passes to the children.
• If no children or spouse: Parents, siblings, or extended relatives may inherit based on Texas succession laws.
• If no surviving relatives: The property may eventually escheat to the state.

Understanding these laws is crucial for families navigating property inheritance.

Avoiding Probate: Alternative Methods

Some property owners take proactive steps to simplify inheritance and avoid probate. Common strategies include:

• Transfer on Death Deed (TODD): Allows the owner to designate a beneficiary to inherit the property outside of probate.
• Living Trust: Placing property in a trust ensures it passes directly to beneficiaries without court involvement.
• Joint Ownership with Right of Survivorship: Automatically transfers ownership to the surviving co-owner.

Potential Challenges in Property Transfers

While transferring property after death may seem straightforward, legal issues can arise:

• Title disputes: Heirs may disagree over rightful ownership, especially if no clear title exists.
• Unpaid debts or taxes: Creditors may have a claim on the estate before heirs receive the property.
• Fraudulent claims: Disputes can arise over forged wills or improper deed transfers.

If complications occur, seeking legal guidance is often necessary to resolve disputes and ensure a smooth transfer.

Disclaimer: This website is for informational purposes only and does not constitute legal advice. Do not act or refrain from acting based on the content of this site. Use of this site or communication with The Keller Firm through this site does not establish an attorney-client relationship.