Heir Property
A deceased home owner’s property is often referred to as “heir property”. In order to transfer a deed after the death of an owner in Texas, the deceased property owner’s name must be removed from the house title and the new owners of the property need to be identified.
Note: A Deed is the document that allows a property transfer to take place. Title is the legal right of ownership to the house or property.
Good to know: A deed is a transfer of property between living people. If the property owner is deceased, he or she can no longer sign the deed. In that case, you need something different such as an Affidavit of Heirship, a probated Will or a court order determining heirship.
First the deceased owner’s name must be removed from the record ownership of the house (the title).
Good to know: The person whose name a property title is in is referred to as the “record owner”. This is the last person the property records show to be the owner of the property. This person may be alive or deceased.
Once the deceased owner’s name is removed from the title, the house can be transferred or sold with a property deed.
These two things may be done at the same time. However, if one is done first, it must be the removal of the name from the house title.
How to Transfer a Property Deed From a Deceased Relative
When you need to transfer a property deed from a deceased relative, the first thing that should be determined is whether the deceased owner had a Last Will and Testament stating his or her wishes.
In most cases, the new owners are the heirs of the deceased record owner. Generally, the heirs are the surviving spouse or the children of the deceased.
Good to know: Beware that a properly prepared and probated Last Will and Testament can change this heirship.
If there is a properly prepared and probated Will, the property of the deceased person passes to the person or persons named in the Will.
This person is generally known as the “devisee” of the property. A devisee can be anyone. A devisee does not have to be an heir. Nor does a devisee have to be a child or relative of the deceased owner. For example, it can be a charity, a church or a friend of the deceased owner.
Note: Technically, any person can be a devisee. This is how you “disinherit” a child or other relative. A Will that names someone else to receive your property will disinherit your heirs.
Transfer of Property After Death With a Will
If the property owner DID have a valid Will when he or she passed, there may be two options for transferring property after death:
One option may be to probate the Will. However, probate is expensive. The cost to probate a Will could include attorney’s fees, court costs, executor’s fees, possible miscellaneous accounting fees. These fees may add up to around $3,000 to $5,000.
Alternatively, if the Will leaves the house to the deceased heir(s), the heir(s) may wish to use an Affidavit of Heirship to establish their heirship instead of going through the cost of probate. The Affidavit of Heirship is a sworn statement that identifies the heirs of the deceased.
Good to know: After the Affidavit is created, the document should be signed by an heir and two witnesses who have extensive knowledge of the family history and who knew the deceased person at least 10 years. It must be signed in front of a notary. Once the Affidavit has been signed and notarized, it should be recorded in the deed records in the county where the property is located.
The property will be titled in the name of the heir(s) after the Affidavit has been recorded. Subsequently, the property may be sold or transferred if the heir(s) chooses to do so. A property deed will be needed to transfer or sell the property.
Transfer a Property Deed After Death Without a Will
On the other hand, if the property owner died WITHOUT a Will, it is a good idea to check the deed records to see if the deceased owner had one of the estate planning deeds recorded. For example, the owner may have had a Life Estate Deed, or a Transfer on Death Deed prepared and recorded in the deed records. Or, in the case of joint property owners, the deceased may have a Survivorship Agreement which would automatically transfer the property to the surviving owner.
If there is no Will, and no estate planning deeds are found in the county deed records, the property cannot be sold or transferred until the deceased property owners name is removed from the house title. In order to do that, the heirs of the deceased must be identified.
By Texas law, all property owned by the deceased passes to his or her heirs upon their death unless there is a Will or other estate plan in place.
Good to know: Generally, the heirs are the children (descendants) of the deceased. If the deceased was married AND the spouse is the mother or father of the child or ALL of the children, the spouse is the heir. If there are no children, the parents of the deceased are the heirs. If there are no parents, the siblings or the siblings children are the heirs. In rare cases, if there are no heirs, the state of Texas becomes the owner of the property.
A helpful chart which further explains Texas Descent and Distribution can be found here: https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf
No matter who the heirs are, heirship must be established and recorded in the deed records before the house may be sold or transferred. An Affidavit of Heirship is used for this purpose.
Does an Affidavit of Heirship Transfer Title
The Affidavit of Heirship alone does not transfer the title of a house. Also, before a property deed transfer can be done, the Affidavit must be properly signed, notarized and recorded.
Once the Affidavit of Heirship is recorded in the deed records, the deceased’s name will be removed from the property title. At this point, the heirs will be the owners of the house and their name will be on the property title. Then they may sell or transfer the property if they wish. To do this, a property deed will be needed.
Note: When the Affidavit has been recorded, the property tax records will be updated to reflect the heir(s) as the new owner. Going forward, the heir(s) will pay the property taxes in their name. Furthermore, if an heir lives in the property, they should be eligible for homestead and other tax exemptions.
How to Transfer Ownership of a House
In most cases, the property deed used to transfer ownership of a house will be a General Warranty deed. The deed will state the name of the current property owner (the current owner will now be the heir), the name of the new owner, and the address of the property to be transferred. It must be signed in front of a notary.
The deed can be recorded same day in many cases if it is taken to the county records office in person. Otherwise, it can be mailed to the county records office along with the filing fee of usually $15 – $40 depending on the county.
Keep in mind, most county records offices will not take a personal check. Also, the county clerk will not file any document that has not been signed.
