How to Select the Appropriate Probate Procedure - LHT

Authored By: Legal Hotline for Texans
Important Update - Transfer on Death Deed Information Download

Important Update - Transfer on Death Deed


A new Texas state law allows real property owners to record a “Transfer on Death Deed” naming a beneficiary to own that real property after they die. With a properly recorded Transfer on Death Deed, no probate is needed to transfer the real property.




How is property owned in Texas?

There are two basic kinds of property. A person can have personal property or real estate. Personal property is “things” like a car, furniture, or even a bank account. Real estate is land and includes land that has buildings on it, like a person’s house.


Property is either separate property or community property. Separate property is owned by an unmarried person or is owned by a person before they got married. A gift or inheritance of a married person is separate property. Community property is acquired by a married person during the marriage.


The total amount of property a person owns is called the estate. The community estate of a married couple is owned by both persons. In other words, each spouse owns one half of the community estate. When a married person dies, only one half of the community estate can be given away because the other half is still owned by the living spouse.


The following is a list of how property can be owned.


  • Separate property
  • Joint ownership (sometimes called joint tenancy)
  • Joint ownership with right of survivorship
  • Payable on death
  • Life estate
  • Community property
  • Community property with right of survivorship

Can a married person still have separate property?

Yes. Property owned before a marriage is separate property. Property that is given as a gift to or is inherited by a married person is also separate property.

What if a person dies without a will?

If a person dies without a will, the law decides how property is divided. The person who has died is called the decedent.  When a married person dies, the person’s living spouse is called the surviving spouse.

For example, if a married person dies without a will, the law says the decedent’s community property goes to the surviving spouse if:

  • The decedent had no children or other descendents
  • All the decedent’s children are also the children of the surviving spouse
  • If the decedent had children with more than one person, the surviving spouse gets his or her one half of the community property and the children get the decedent’s one half of the community property.
  • If there are no surviving children or descendants, the decedent’s share of the community property goes to the surviving spouse. 

What if the person had a will?

A valid will controls how a person’s estate is handled after the person dies. However, to change the title to some property, the will must be admitted to probate. This means that an application to admit the will for probate must be filed with the probate court where the person lived or died, and the probate judge must find that the will is valid. The cost to file an application in the probate court varies depending on the county. Most probate courts will not allow pro se litigants, which means that you must hire an attorney. This adds to the cost. To save money for their family, many people attempt to own property in a way that makes it unnecessary to probate the will. For example, if a married person dies, and the couple’s property is owned with right of survivorship, the property automatically goes to the surviving spouse.

What about premarital agreements?

Persons who are planning to be married can prepare a written premarital agreement that says that certain property will remain separate property even after the marriage. Unless there is a will that states who will get the property, the property will not go to the surviving spouse.

What is a joint tenancy?

A joint tenancy means more than one person owns a certain item of property.  Both real property (land) and personal property (things) can be owned jointly.

There are two kinds of joint tenancy. People can own property as joint tenants or as joint tenants with right of survivorship. In a joint tenancy, when one owner dies, his or her share of the property passes to the decedent’s heirs or to the persons named in the decedent’s will. In a joint tenancy with right of survivorship, when an owner dies, his or her share of the property goes to the other owners.

A joint tenancy with right of survivorship has to be created by a written agreement.

What about community property with right of survivorship?

When a married person has children who are not the children of the surviving spouse, his or her half of the community property does not automatically go to the surviving spouse when the person dies. In Texas, a married couple can agree in writing that all or part of their community property will go to the surviving spouse when one person dies. This is called a right of survivorship agreement. The right of survivorship agreement must be filed with the county court records where the couple lives. This can be a way that married couples can see to it that all community property stated in the agreement automatically belongs to the surviving spouse without having to go to probate court.

What are the different types of joint bank accounts that I need to know about?

Generally there are two types of joint bank accounts. If all parties to a joint account are living and it is set up under the names of Owner A or Owner B, then either Owner A or Owner B can take money out of the account without getting permission from the other owner. If the account is set up under the names of Owner A and Owner B, then both owners must sign to take money out of the account.

Is payable on death a good idea?

Another way of owning financial accounts, so that they will pass automatically without probate is called payable on death (POD). Payable on death accounts are not joint accounts because during your life you have total ownership of the account. After your death the person you chose becomes the owner of the account. An example of this type of account is an individual retirement account. To set up a payable on death account, contact your bank or financial institution.

What is a life estate in real property?

A life estate gives a person the right to live on or use property during the lifetime of the life estate owner or until his death.  Someone else is the full owner of the property. The person only has an ownership interest in the property as long as he or she is alive. Some people will use a life estate to avoid probate.

The way this works is that the property owner (grantor) has a deed prepared that gives the property to someone else (grantee) when the owner dies. The grantor has the right to live on and use the real property until death. At the grantor’s death the real property automatically goes to the grantee. After the life estate is created, the grantor cannot sell the property without the consent of the other person. This kind of deed should only be prepared by an attorney.

What is the difference between term insurance and whole life insurance?

Term insurance does not have any cash value until the insured person dies. The policy benefit is paid to your beneficiary when you die.  Whole life insurance has some cash value as well as paying benefits at your death. You should review the terms of any insurance policy to see if the benefits are worth the higher premiums that you have to pay for a whole life policy.

When you fill out the forms for a life insurance policy, you are asked to name a beneficiary. That is, to name the person who gets the benefits when you die.  Make sure that you fill in the name of a specific person to be your beneficiary.  If you fill in the blank with something like, “my estate” or “all my heirs,” your family will have to go to the probate court to get the insurance policy benefits.  Naming a specific beneficiary keeps an insurance policy out of your probate estate. 

As noted, this publication is general in nature and should not be relied on as advice for your particular circumstances. For specific advice about your individual situation, it is always best to talk to an attorney.

For more information…

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Last Review and Update: Dec 15, 2015