PAUL PREMACK, JD*
8031 Broadway
San Antonio, TX 78209
*Licensed in Texas
BENJAMIN PREMACK, JD** 
11900 NE 1st Street
Bellevue, WA  98005
**Licensed in Washington State


Texas Probate, Texas Estate Planning, Texas Elder Law

 

San Antonio Express-News
July 11, 2006

Probate to Transfer Title

copyright 2006, Paul Premack

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Dear Mr. Premack: My husband died several years ago. He left a Will. Our home was in both our names so I inherited it. I want to change the title to my name only. I went to the courthouse and it's still under both names. I was told I couldn't change it. Are they right? And if not, how do I go about making the change? Thank you. – G.F.

 

Property is always owned by someone. Even when an owner dies, someone else becomes owner in their stead. We just don’t always know exactly who gets ownership, and that is where legal processes clear up the questions.

 

The traditional way to know who gets ownership is to refer to the decedent’s Will. Your husband did leave a Will so you know it names you as his sole heir. However, the public in general does not know about his Will, so no one is going to recognize you as owner until you prove your status.

 

When you went to the courthouse and the clerks said you could not change the title, they were correct but incomplete. That is understandable; they do their jobs well but are not trained as attorneys. The title paperwork can be changed by going through probate. That will result in you becoming Executor of the estate or a court order that recognizes you as owner of the house.

 

If you become Executor, you have broad authority to finish up your husband’s business, pay his debts, and fulfill the terms of his Will – including authority to sign a deed naming you as owner of the house. If you obtain a court order (called “probate as muniment of title”) you must show the court that your husband did not leave any unfinished business or debts for an Executor to handle. If so, the order establishes your ownership rights to the house based on the Will.

 

There are ways for people to set up their estates to avoid probate. Your husband did not take advantage of any of these opportunities, so they cannot help you now. But others can simplify the legalities by using different legal tools, such as a Community Property Survivorship Agreement or a fully funded Living Trust. Those techniques have their pros and cons, so before any legal tool is selected a consult with a qualified estate attorney is in order.

 

Dear Mr. Premack: I am an only child. My father died in early 2006 and my mother died a few months later. Their home was deeded to my daughter 4 years ago, and the rest of their estates were left directly to me in their Wills. Must I go through probate? Can I do the probate myself, and can both be done at the same time? Thank you. B.L.B.

 

Your father’s Will probably left his estate to your mother, who did outlive him. His Will must be probated so that she is recognized as owner of the estate. She died a few months later, naming you as heir. It must also be probated so that you are recognized as owner. The exception would be for any non-testamentary assets, such as IRAs, life insurance, or bank accounts with survivorship or  pay-on-death arrangements. You may claim those assets by presenting copies of their death certificates to the financial institutions without probate.

 

If you have to go to court, you can represent yourself pro se. However, the court and clerks will not offer themselves as a substitute for an attorney. They cannot advise you on how to proceed, what options you have or what steps to take. You’ll have to study up on that yourself at the law library. Both probates can be done simultaneously, but there is a separate probate process for each estate with all the associated legal documents, filing fees and proofs being presented for each estate.

Prior Column: No "right" to Inherit
Next Column: Surviving Spouse Homestead Rights 
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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