Dear Mr. Premack: My wife and I completed a Community Property Survivorship Agreement with you years ago. We remember that the primary reason for the Agreement is to avoid probate. We have some questions and hope you can give us some answers. Thanks. - R.W.B.
Question: Does having a Community Property Survivorship Agreement really avoid probate? Does it have to go before a Judge when one of us dies?
Answer: A Community Property Survivorship Agreement (CPSA) passes title to the surviving spouse without court action when the first spouse dies. It is a written agreement prepared by your Attorney based on specific provisions in the Texas Estates Code and the Texas Constitution. It must contain specific statements to be effective, must be signed by both spouses before a notary, and must be recorded in each county where you own land.
Because it creates a right of survivorship, no probate of the CPSA is necessary when the first spouse dies. The statute states that: "An agreement between spouses creating a right of survivorship in community property that satisfies the requirements... is effective without an adjudication."
When Survivorship Agreements were something new (in the early 1990’s) title companies were confused by them and were uncertain how to proceed. Since then, they have become routine and are readily accepted as passing title to the house when a spouse dies.
I recommend that, after the death of a spouse, the survivor have us prepare an “Affidavit Pursuant to Community Property Survivorship Agreement” to formalize the transfer in the county real property records. Optionally, the law also allows (but does not require) the survivor to apply to the court for an order stating that the agreement satisfies the requirements of law. This is rarely used because the CPSA accomplishes the title transfer without adjudication.
Question: If you have a valid Will and a Community Property Survivorship Agreement, is it still necessary to probate the Will?
Answer: Though the Agreement is intended to avoid probate there may still be reasons for probating your Will. For instance, you may own separate property that cannot be covered by the CPSA. Or you may have an asset you want to give to someone other than your surviving spouse. The survivorship agreement is limited to community property and is limited to passing title to your spouse only. Any other estate planning goals may require probate of your Will or use of a more in-depth planning tool like a Living Trust.
Question: We already have a CPSA but since we signed it we sold our house and bought a new home in a neighboring county. What should we do?
Answer: The CPSA itself is still valid, but it is not in the public records of your new residential county. You need to find the original of the CPSA and file it with the county clerk’s real property records in your new county. If you cannot find it, contact your Attorney to create a new CPSA that covers the new house.
Question: Does the CPSA also avoid probate when the second spouse dies?
Answer: No, the CPSA does not avoid probate twice. It is an agreement between the spouses that serves its purpose at the first death, resulting in the survivor owning the house. The survivor should at minimum have a Will that can be eventually probated. If avoiding probate is the goal, the survivor should consult with the Attorney about legal tools like a Lady Bird Deed, a Living Trust, or some other tool that is more appropriate under your exact circumstances.
Column published on July 2, 2021.
Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.