Who Gets the House?

How the death of a homeowner impacts the home.

There has been a lot of buzz about North Texas real estate. While an increase in demand coupled with a limited supply of homes has caused a significant market impact, the hot topic in our office is how the death of a homeowner impacts its ownership.

Most people believe a home owned jointly by a couple passes automatically to the survivor when one spouse dies, like a joint bank account would.

This is generally not the case. When one spouse dies, the survivor only owns half of the house.

Most jointly owned homes require legal action after an owner dies, even when the owners are a married couple. Often, the family does not learn of the necessity for action until it’s too late to take advantage of the best options.

What should be — and can be — done after a co-owner of real estate dies? In Texas, there are four options:

1. Probate the decedent’s will.

This option is only available if the owner who passed away has a valid will. There are two main types of probate proceedings: Full administration, wherein an executor is appointed; and probating the will as a muniment of title. Muniment of title proceedings is only available if specific conditions are met and if there is no need for an executor to be appointed.

Benefits: (a) provides clear legal transfer of property; (b) ensures the decedent’s wishes are carried out; (c) can handle all types of assets.

Drawbacks: (a) can be expensive; (b) must be done within four years of the date of death to have an executor appointed; (c) requires a court hearing; (d) can take several months.

2. Heirship proceedings.

This process applies to decedents who die without leaving a valid will. 
An administrator (much like an executor) is appointed to handle the estate’s affairs.

Benefits: (a) provides clear legal transfer of property; (b) can handle all types of assets.

Drawbacks: (a) more expensive than probate; (b) must be done within four years of the date of death to have an administrator appointed; (c) requires a court hearing and witness testimony; (d) can take several months; (e) does not consider the wishes of the decedent — the state decides how the property is divided.

3. Small estate affidavit.

This option may be for decedents who die without leaving a valid will if the estate’s total value is less than $75,000, not including the value of the homestead. The estate must have more assets than debts.

Benefits: (a) cheaper than heirship proceedings; (b) effective for homestead going entirely to surviving spouse; (c) can also handle the specific personal property.

Drawbacks: (a) ineffective for real estate other than the homestead; (b) effective for a homestead in only limited circumstances; (c) requires sworn statements from witnesses; (d) requires a judge to approve; (e) can take several months; (f) does not consider the wishes of the decedent.

4. Affidavit of heirship.

This option may be available for those who die with or without a valid will. It does not transfer title to the property. Instead, it serves as evidence of ownership.

Benefits: (a) generally cheaper than probate; (b) does not require action in court; (c) could be handled quickly.

Drawbacks: (a) must be recorded in the deed records for five years before it is effective; (b) does not legally transfer ownership; (c) is not universally accepted; (d) only applies to real estate and not the other types of property; (e) does not take into account the wishes of the decedent.

While these options address joint ownership of real estate after a spouse dies, there are ways to proactively ensure your house goes to your spouse upon your passing. One way is to create a trust to own the home. This strategy is well-known and has been used for generations.

Something New

A new option is to use a Transfer-on-Death Deed, a specific type of deed allowing you to name primary beneficiaries and even secondary beneficiaries.

For example, you and your spouse can designate your share of the house to go to each other upon the first person’s passing. It can then pass to your children after both of you have passed.

This option allows the house to pass entirely outside of probate for both spouses and can save your family thousands of dollars, enabling you to leave your home to your loved ones without court involvement.

I encourage you to discuss all your options with an estate planning attorney.


Pamela Welch

Pamela Welch is an estate planning and probate attorney with Miller Law Office in Plano, Texas. For more information visit their website or call (214) 292-4225.

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