Death in the Chain of Title

Death in the Chain of Title

When there has been a death in the chain of title, the transaction can easily become very complex. Below are some truths about how death can affect estates:


  • Title to property owned by a deceased person (hereinafter referred to as the “decedent”) passes to the heirs immediately upon a death. While that is true, we still must have an administration of the estate or use Affidavits of Heirship to properly document the transfer of title when dealing with a real estate transaction.
  • If a probate administration is filed the court proceedings control and document how title passes.
  • If someone dies without a Will, or if that Will is not probated, then state law controls how a decedent's ownership passes. In Texas a large majority of people that die do so without a Will so it is important to understand how the law works to pass title. This law is known as “Intestate Succession.” 
  • This law can also apply if the Will does not give appropriate powers to an executor.

Texas Estates Code


In many cases, intestate succession does not pass title the way most people think ownership transfers. People can be very surprised as to who really owns a piece of property. The rules for intestate succession apply to both real and personal property as well as community and separate property.


For the purposes of this article, we are only going to look at how real property passes. The passage of real property depends on a few factors:


  1. Was the decedent married?
  2. Did they have children?
  3. If not, who are their remaining family members? 
  4. Was this property community property or separate property? 


To help demonstrate how title passes we have created the charts below. Simply click the button to view the charts.

VIEW CHARTS

How Does Intestate Succession Affect a Real Property Transaction?


To help illustrate how this affects a real property transaction, let's take a look at a few scenarios.


Scenario 1:

John and Jane get married in 2011. After their marriage, they buy a home and have two children. In 2015 John dies without a Will. Under the community property laws of Texas, the house is presumed to be community property so John’s interest passes to Jane under this set of fairly straightforward facts.


Scenario 2:

Let’s look at what happens when one small fact changes. Now let’s say all of the facts above are true but we also learn that John had a child with his first wife so that John has a total of 3 children. That one fact changes who now owns that property. Under intestate success, Jane owns her 50% that she acquired when they purchased the property. John’s 50% does not pass to Jane. Instead, John’s 50% passes straight to all three of his children.


This result can be very confusing to clients because most people in Texas assume that community property passes to the surviving spouse when it does not under Texas law if there are additional children belonging to the decedent that were not the children of the surviving spouse.


Scenario 3:

We are still working with John and Jane who married in 2011. Let’s now say that all of the children of John are also Jane’s children. John and Jane are living in a home that John owned prior to marrying Jane. When John dies what happens to that property? Under these facts, Jane is not the owner at all. Instead, John’s three children are the owners of the property. Jane may have a homestead interest and a life estate interest, but she is not a fee simple owner of the property.


Scenario 4:

Let’s go back to the facts from Scenario One. John and Jane are married, now since 1990. They bought the house together and it is community property. All of John’s children are also Jane’s children. John dies on January 1, 1993. Who owns it now? Now, because the law was different before September 1, 1993, that house is going to be owned by Jane (50%) and the children (50%).


Getting to Closing


As mentioned above, when someone dies there are next steps that have to happen (either a probate or recordation of the Affidavits of Heirship) to document the transfer of title. Many times the seller of a property does not know how to handle the next steps that are needed to get their property sold and they rely on the title company for guidance and assistance. The Law Office of Latra Szal, PC understands the intricacies in the affidavit process and is happy to work with you to get the correct documents needed for your transaction. We hope that you will consider our firm to assist you with this process.

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