Dear Mr. Premack: My father’s will was probated as Muniment of Title, but I’m not sure the court order was recorded in the Deed Records. If so, is that sufficient for my sister and me to transfer our mother’s house to us after her death? If not, is a warranty deed from our mother as executor needed to transfer title from both their names to her name only? – MHW
A Will can be probated as Muniment of Title in Texas only when there are no debts beyond the mortgage on the decedent’s homestead. Essentially, you are telling the court that there is no need for appointment of an Executor in the estate because, in the absence of debts, there is only one job to be done: transfer the decedent’s assets to the people named in the Will.
When the court accepts a Will for Muniment of Title, the Judge signs a court order which states (in part) that the “the persons entitled to the property under this Will shall be entitled to deal with the properties to which they are so entitled in the same manner as if the record of title of those properties were vested in their names.” The order establishes the rights of the new owner, and no other document is necessary.
The order is, however, retained in the court’s probate records. While the probate records are public records, they are not the first place one would think to look for real estate title information. Consequently, a certified copy of the order (with the Will attached) is usually filed with the County Clerk’s real property records.
You say that the order in your father’s estate has not been filed in the real property records. It is not too late to file it. Visit your county clerk’s probate office, obtain a certified copy and file it in the real estate records. The order makes your mother owner of the house, but recording it lets the public know that she is the owner.
You ask if a warranty deed from your mother as Executor is needed to transfer title from him to her. No. She is not Executor. The decision to offer the Will for probate as Muniment of Title was a decision to forgo appointment of an Executor.
What will happen when your mother eventually dies? First, recognize that she is already sole owner of the house. That is settled. What happens to her property upon her death is a choice that she alone can make. She should declare her instructions in her own last Will and testament, and upon her death, her Will should be admitted to probate so that title can be transferred according to her wishes.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, July 23, 2010