Whether you have a will or not, your property will still go through the probate court system. A Transfer on Death Deed conveys property outside of probate, allowing for you to avoid incurring court costs. Also, it excludes real property from Medicaid estate recovery.
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For individuals age 55 or older, states are required by the federal government to seek recovery of payments from the individual’s estate for nursing facility services, in-home care, and related hospital and drug services. A simple will goes through probate and subjects property to being taken by Medicaid estate recovery. Under current law, property passed on by a Transfer on Death Deed is exempted from Medicaid estate recovery.
The Transfer on Death Deed does not replace a will. The will may still remain an important part of your estate plan especially if you have special bequests or a large amount of personal property. A Transfer on Death Dead covers only real property, like land and improvements, and conveys property outside of probate which allows you to avoid court costs. It is best if your will and transfer on Death Deed are consistent as to who receives your home and land. If your will and Transfer on Death Deed are inconsistent, the person named in the Transfer on Death Deed, not your will, will own your property after your death.
Real property includes land, improvements (including house), uncut timber, and mineral rights. Personal property includes things that are not attached to the land and can be easily removed. Personal property cannot be disposed of with a Transfer on Death Deed
- If your heirs can decide on who gets furniture, jewelry, clothing, etc., then the courts do not have to be involved with deciding who gets possession of those items.
- If you have stocks or mutual funds, all of the investment houses will allow you to name a beneficiary to receive those investments without going through the courts.
- Similarly, if you have a savings or checking account, you should make sure that it is either a joint account where a surviving heir has access to make deposits and withdrawals during your lifetime, or that it is a POD or “payable on death” account, where you designate a beneficiary who will obtain ownership of the account when you pass away outside of the court system.
Yes, the Transfer on Death Deed may be revoked or canceled in several ways. The deed is considered revoked if you record a new Transfer on Death Deed, or if you record a cancellation of Transfer on Death Deed. A divorce decree will also invalidate a deed with respect to a spouse beneficiary.
Oftentimes, people automatically go to their tax records when asked to obtain a legal description of their property. A legal property description should ALWAYS be obtained from an existing deed, and NOT tax records as these are oftentimes incomplete or inaccurate and can cause an otherwise properly filled out Deed to become null and void.
Many people mistakenly believe that just because you are married in Texas and you own property together, that the surviving spouse automatically inherits the entire property. This is not the case. If you have a will, it will have to be probated in court to transfer the title. An alternative option is a Transfer on Death Dead to transfer the property to your spouse.
It can be a mistake to put off filing a Transfer on Death Dead, especially if you are in poor health. Unfortunately once a person has passed, or is deemed incompetent, a Transfer on Death Dead is no longer an option. A power of attorney can NOT be used to execute a Transfer on Death Dead for another person. It is beneficial for Texas landowners to have a Transfer on Death Dead drafted and filed as soon as possible.
Divorce can be a dangerous time. If you are concerned about your safety or the safety of your children, call the National Domestic Violence 24 Hour Hotline at 1-800-799-SAFE (7233). They can refer you to help in your community.
For legal help, you can also call:
- Texas Advocacy Project Hope Line at 1-800-374-HOPE (4673)
- Advocates for Victims of Crime at 1-888-343-4414
For situations involving sexual assault, you can also call:
- Legal Aid for Survivors of Sexual Assault at 1-800-991-5153
If you are an immigrant, you can also call:
- Refugee and Immigrant Center for Education and Legal Services (RAICES) 512-994-2199
In an emergency, please call 911.
Find out more in the Protection from Violence or Abuse section of this website.
You do not have to have a lawyer to file or respond to a divorce case. However, divorce cases can be complicated and your rights as a parent, your property and your money may be at risk.
It’s a good idea to talk with a family law lawyer about your particular situation. Family law lawyers specialize in cases involving families, like divorce. A family law lawyer can explain your rights and options.
It’s really important to talk with a family law lawyer if any of the following are true.
- You are afraid for your or your children’s safety.
- Your case is contested.
- Your spouse has a lawyer.
- You or your spouse have a house, retirement, business, other valuable property or a lot of debt.
- You need spousal maintenance (alimony).
- You and your spouse have a child with a disability.
- You or your spouse have an ongoing bankruptcy or are planning to file for bankruptcy.
- You are in a same sex-marriage and you and your spouse have a child but there is no adoption or other court order stating that you are both legal parents.
If you need help finding a lawyer, you can:
You can file for divorce in Texas if you or your spouse has lived:
- in Texas for at least the last 6 months, and
- in the county where you file for divorce for at least the last 90 days.
See Texas Family Code Section 6.301.
Note for military families: If you are serving in the military or other government service outside of Texas you may still file for divorce in Texas if:
- Texas has been the home state of either you or your spouse for at least 6 months and
- the county where you plan to file the divorce has been the home county of either spouse for at least 90 days.
The same rule applies if you accompanied your spouse who is serving in the military or other government service outside of Texas. If Texas is your home state, time spent outside of Texas with your military spouse counts as time spent in Texas.
See Texas Family Code Section 6.303.
Note for military families with children: Talk to a lawyer if you and your spouse have children together and your children have lived in another state or country for the last 6 months. A Texas court may not have jurisdiction to make orders about your children.
As long as you meet the residency requirements for divorce, you can get divorced in Texas even if your spouse lives in another state.
Note: The court must have personal jurisdiction over your out-of-state spouse to include orders in your divorce that impose a personal obligation on your spouse — such as ordering your spouse to pay a debt or pay child support. The Original Petition for Divorce form includes a list of situations that give the Court personal jurisdiction over an out-of-state spouse. Check any that apply to your case. Talk to a lawyer if none apply or you have questions about personal jurisdiction.
Before you can file a new divorce case, all prior divorce cases must be dismissed. You must tell the judge about all other court cases between you and your spouse. If a prior case is still active, the court might not have jurisdiction in a new case. Talk to a lawyer if you have a prior case that might be active.
Yes. You can get divorced in Texas if:
- your marriage is valid in the place where you were married, and
- you or your spouse has lived in Texas for at least the last six months and in the county where you file for divorce for at least the last 90 days.
Yes. You may file for divorce in Texas even if you do not have legal status in the United States, if you or your spouse has:
- lived in Texas for at least the last 6 months, and
- lived in the county where you file for divorce for at least the last 90 days.
When you file for divorce, you must usually pay a “filing fee.” If you need to have your spouse served, you must also pay an “issuance fee” and a “service fee.” These fees vary by county. Contact the district clerk’s office in the county where you plan to file for divorce to learn the fees.
If you don’t have enough money to pay the fees, you can ask a judge to waive the fees by completing and filing a Statement of Inability to Afford Payment of Court Costs. Read this short article to learn more: Court Fees & Waivers.
No. Texas is a “no-fault” divorce state. This means that a divorce can be granted without either spouse being at fault as long as one spouse believes that the relationship can’t be fixed.
Note: The TexasLawHelp.org divorce forms only include the “no-fault” grounds for divorce. They do not include any fault-based grounds for divorce. Talk to a lawyer if you want to ask for a divorce based on fault.
TexasLawHelp has instructions for uncontested divorces. Your divorce is uncontested if it can be finished by agreement or by default.
- Your divorce can be finished by agreement if you and your spouse agree about all the issues (including custody, visitation and child support) and are both willing to sign the divorce forms.
- Your divorce can be finished by default (without your spouse) if your spouse is served and your spouse does not file an answer or otherwise appear in court.
Your divorce is contested if your spouse files an answer or waiver of service and will not sign the Final Decree of Divorce. To finish a contested divorce, you must set your case for final hearing and give your spouse at least 45 days’ notice of the hearing. It’s important to talk with a lawyer if your case is contested.
If your divorce is contested, you may have to automatically provide your spouse with information and documents. See Required Initial Disclosures.
Read this article to learn more: How to Set a Contested Final Hearing (Family Law).
Your spouse cannot stop you from getting a divorce. Texas is a “no-fault” divorce state. This means that a divorce can be granted without either spouse being at fault. As long as one spouse believes that the relationship cannot be fixed, the judge will grant the divorce.
In almost all cases, you must wait at least 60 days before you can finish your divorce.
When counting the 60 days, find the day you filed your Original Petition for Divorce on a calendar, and then count out 60 more days (including weekends and holidays). If the 60th day falls on a weekend or holiday, go to the next business day. Note: When counting the 60 day waiting period, don’t count the day you filed your Original Petition for Divorce. Day 1 is the next day.
There are only two exceptions to the 60-day waiting period.
- If your spouse has been convicted of or received deferred adjudication for a crime involving family violence against you or a member of your household, the 60-day waiting period is waived.
- If you have an active protective order or an active magistrate’s order for emergency protection against your spouse because of family violence during your marriage, the 60-day waiting period is waived.
Note: You can always wait longer than 60 days, but your divorce cannot be finished in fewer than 60 days unless one of these exceptions applies.
If you need orders right away, you may ask a judge to make a temporary restraining order (TRO) and/or temporary orders. A temporary restraining order lasts until you can have a temporary orders hearing. Temporary orders typically last until the divorce is finished. Get more information here: Temporary Orders & Temporary Restraining Orders (TROs).
Note: A family violence protective order is different from a temporary restraining order. If you need a family violence protective order, you can call organizations such as Crime Victims at (844) 303-7233, or the National Domestic Violence 24 Hour Hotline at (800) 799-SAFE (7233).
Mediation can be helpful when both people have equal power. Both people must be able to say what they want without being afraid or pressured.
Threats and control are common in relationships where one person is abusive. If the abuser is used to being in charge and making all the decisions, mediation probably won’t work very well.
Mediation may be even more of a problem if your spouse abused you and you don’t have a lawyer.
You can change your name to a name you have used before as part of your divorce.
If you want to change your name to a name you have not used before, you must file a separate case. You can use this toolkit to change your name to a name you have not used before: I want to change my name.