How to Transfer Real Property Within Texas Probate

by Stephanie Dube Dwilson

The death of a loved one is hard enough without having to figure out how to deal with what he left behind. Transferring the deceased's land or real estate into a new name can be complicated. The type of legal procedure that governs this process depends on whether the deceased left a will, how the property was titled and if any debts remain.

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Real Property Defined

Real property includes the actual land that the deceased owned, as well as any improvements made to the land. Real property also encompasses the mineral rights and oil and gas rights that the deceased might hold. In contrast, personal property is everything else the deceased owned. For example, this can include cash and savings, clothing, cars, stocks, life insurance policies and household items like furniture or appliances.

Distribution of Property without a Will

If no will is in place, how property is dispersed depends on whether the deceased was married and when he acquired the property. In Texas, any real property that a deceased person owned before getting married is considered separate property. One-third of separate property passes to the spouse, while two-thirds pass to the children. If the deceased did not have children, one-half the property passes to the spouse and one-half to his closest relatives. As for community property, which is any property acquired after marriage, all real property goes to the spouse. However, if the deceased had children with a different parent other than the current spouse, then one-half the real community property goes to those children.

Starting the Probate Process

Probate is the term used to describe the winding up of a deceased person's affairs and property. The estate must go through probate, or an alternative process such as an affidavit of heirship or a muniment of title, before the transference of title to real property can occur. To get an estate into probate, the executor named in the will typically files an application to probate the estate with the local county clerk. If there is no will or if the will didn't designate an executor, then any interested party, such as an heir, can file the application. The clerk then schedules a hearing and the judge appoints an official estate administrator. A notice to creditors is then published in a newspaper.

Transferring Title within Probate

When an estate is in probate, before the transference of title can occur, Texas law requires that all beneficiaries receive certified letters with a copy of the will, if a will exists. The executor of the estate must prepare an inventory of everything in the estate, an appraisal of what all the assets are worth and a list of any creditors with claims against the estate. Texas Probate Code stipulates the order in which creditors should be repaid. After creditors are paid, the court disburses the estate and issues new titles for real property.

Muniment of Title

In Texas, muniment of title is the term used for an alternative process to probate. Muniment of title allows for the transference of the title to real property when the deceased didn't have any debt that wasn't secured by real property, but did have a will. In this situation, the executor or any beneficiary named in the will can schedule a hearing with the local county court to validate the will. Once the court validates the will as a muniment of title, the beneficiaries can have the titles to real property transferred to them, according to how the will stipulates the division of real property.

Affidavit of Heirship

An affidavit of heirship is another alternative process to probate that allows for the quick transference of real property in Texas if someone's estate consisted only of real property. This affidavit transfers titles to real property directly to the heirs. Two witnesses who will not benefit from the deceased's estate must sign the affidavit. The affidavit must be filed in the local county deed record.