This column first appeared in the San Antonio Express News on March 23, 2018.
Dear Mr. Premack: What gives? My mom was told by the Bexar Appraisal office when my dad died three years ago that they put the house in her name. She was paying taxes on the invoices that come from them, that only had her name on it. Now she wants to sell her house and the title company says the house is not in her name only – it is in both my parents’ names. They say they won’t allow her to sell the house until she does a probate on my dad to get the house in her name. We thought the house was in her name. The Bexar Appraisal office says it is in her name. What do we do? GGG
Your mother fell victim to incomplete knowledge of the law and to bad advice from someone whose words did not mean what she thought they meant. The situation is that the Bexar Appraisal office, along with all of the county appraisal offices around Texas, are legally charged with setting the value of various properties so that the taxing entities (like the County, the City, and the School District) can calculate how much tax is owed. The Appraisal District keeps an account for each taxable property, and naturally they want that account to reflect the true and proper ownership of each taxable property.
But the Appraisal District’s tax account records are not the official records of ownership. Their records are a listing of who they think owns the property for tax purposes. The actual ownership records are maintained in the County Clerk’s office. Hence, when a person dies it is necessary to first change the records in the County Clerk’s office and then, subsequently, modify the tax records to match.
So how to you change the records in the County Clerk’s office? That depends on how the property is owned, conditions that may be set out in the deed, the terms of the decedent’s Will, and other factors. Traditionally, spouses in Texas own their homes as joint tenants with NO survivorship rights. When one of them dies, a qualified probate Attorney is engaged to offer the Will for probate no later than four years from the date of death. The Executor who is nominated in the Will is appointed by the court. The Executor then, in compliance with the terms of the Will, signs and files a new deed with the County Clerk to change the ownership records.
It is also possible that while both spouses were alive they signed a Community Property Survivorship Agreement. This contract, when prepared by a knowledgeable attorney, passes title to the house without the need for probate. When one spouse dies, the survivor’s attorney writes an Affidavit which is filed with the County Clerk establishing the survivor is sole owner of the house.
Another out-of-court solution occurs when both spouses, while living, sign and record a deed placing title to the house in Trust. Upon the death of one spouse, the Trust remains owner of the property for the benefit of the survivor. When the second spouse dies, the Trustee signs and records another deed conveying the property to the identified heirs.
The goal is to legally change the County Clerk’s records of ownership. The Appraisal District should then modify its tax account records to match. Your mother put the cart before the horse by believing that the Appraisal District’s change to the tax records made her owner of the house. The title company’s suggestion that she probate her husband’s Will may be her best approach to claiming legal ownership, changing the County Clerk’s records, and moving forward with the sale of the house.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.