Recently, I was at the Justice of the Peace Court and they typically request that you get there before 4:30pm to file any eviction petitions.  I was unable to get to the counter in time and was scolded due to a lady before me who was going through an unfortunate eviction/probate scenario.  She was trying to evict a tenant but was having complications because she was not the owner of the property and did not have a lease to the property.  Unfortunately the property and lease were in the name of her father and he had recently passed away.  She was very concerned that she had a “professional tenant” and was going to have a tough time evicting.  After being brought to tears with frustration, the lady finally left the counter after she realized the clerk was not going to give her the answers she was seeking.

A “professional tenant” that knows what they are doing would have a field day with this scenario.  The tenant in this case had already received a writ of reentry and had taken possession back of the property.  The women trying to evict has a few more problems than a lengthy eviction.  

The issue of a home not being properly probated raises many potential problems for the assumed landlord.  What if she wanted to sell the property?  What if she wants to refinance the property?  These are not realistic options without the property being properly probated.  Unfortunately, these types of issues come up quite frequently and catch beneficiaries by surprise.

These too familiar scenarios can now be avoided with Texas’s new Transfer on Death Deeds.  With this new tool you can avoid the probate process to transfer real estate.  Effective September 1, 2015, Texas Estate Code Section 114.151 allows for Transfer on Death Deeds.  Lawmakers believe this provision will provide a simplified process for the non-probate transfer of real estate.

A Transfer on Death deed operates the same as any other conveyance, except that title does not pass to the grantee until the grantor’s death. The property conveyed passes outside of the grantor’s estate. To be effective, a Transfer on Death Deed must be signed, notarized, and recorded in the deed records of the county where the property is located prior to the death of the grantor. It may not be created through the use of a power of attorney. An unrecorded Transfer on Death Deed is ineffective to convey property.

The statute permits the naming of alternative beneficiaries in the Transfer on Death Deed; however, the statute does not permit a grantor to convey under complicated distribution provisions or to several people in varying percentages. If the grantor changes his or her mind, a Transfer on Death Deed may be revoked by the filing of a “Cancellation of Transfer on Death Deed” form or by the recording of a subsequently executed conveyance of the same property. A Transfer on Death Deed may not be revoked by a will.

Now that you know, don’t make the mistake of getting caught in one of these messy scenarios.  Contact one of our expert real estate attorneys to get a consultation on how to take advantage of this new Texas tool.

(Written by Steven Almaraz – Firm Manager)