Dear Mr. Premack: You stated in a recent column "most jointly owned homes do not have survivorship rights. A husband and wife can create survivorship rights by following Section 451 of the Texas Probate Code." My wife and I did exactly that. We had our signatures notarized and filed the agreement with the county clerk. Despite these actions, after my wife died my mortgage holder refused to transfer title. A lawyer I visited said most mortgage companies will not transfer title based upon a document prepared in accordance with Section 451 of the Probate Code. Looks like my wife and I did everything by the book but to no avail. Comment please. – EK

The Code section you refer to allows spouses to create a community property survivorship agreement (CPSA). Before this part of the Code became law, there was no way for spouses to legally own an item of community property with survivorship rights attached.

If your CPSA complies with Section 451, then it is already legally valid. Under it, you already received full title to your home the moment your wife died. No further action was legally required, although I often counsel clients to file an affidavit with the county clerk to inform the public of their spouse’s death.

You think you do not have title, but you do. Your "mortgage holder refused to transfer title" because you went to the wrong place to do the wrong thing. The mortgage holder only has a lien against your home securing the purchase money loan. You hold title already. The lender’s only role is to accept the monthly payment you make on the promissory note and to release its lien when the note is paid in full.

The lawyer you visited was wrong to leave you confused. He may focus on other areas of the law and be unfamiliar with Section 451. Or he may be pushing you to rely on the more traditional (and more costly) probate process.

Although using a CPSA is efficient, it took a few years after the law was enacted for it to be understood and accepted. That was back in 1989. Today, title companies routinely insure title transfers when full title is based on a CPSA.

Some day, when you are ready to sell your home, the purchaser will demand "good title" from you. You already have full title to the house under Texas law because your CPSA is signed and recorded with the county clerk and complies with the requirements of the Probate Code. When you sell the house, your good title is transferred to that purchaser (and the mortgage holder has no further involvement because it gets paid in full from the sale proceeds).

The bottom line is this: 1) If your CPSA complies with Texas law, consider filing an affidavit with the county clerk to create a public record of your wife’s death. 2) You do not need the mortgage company to do anything for you other than to accept your routine monthly payments, which it is required to do under its contract with you and under federal law. As long as you make your payments on time and avoid any other default on your mortgage, the mortgage holder has no involvement with title to your home.