Holding a Will and a Deed That Don't Match? What Passes Outside Probate in Texas

Before anyone files an application in the county clerk's office, it is worth finding out how much of the estate is actually headed there. Texas gives an owner several ways to move property at death without a judge, and each of them works on paperwork signed long before the funeral. The careful reader does not assume any of it worked. Each mechanism has a document behind it, that document either exists in the right form or it does not, and the difference decides whether an asset lands in the survivor's hands or in the probate inventory.

The transfer on death deed, and the two years behind it

A Texas transfer on death deed passes real property to a named beneficiary automatically, but only if it was signed, acknowledged before a notary, and recorded in the deed records of the county where the land sits before the owner died. Recording after death does nothing. What a careful reader checks next is the two-year window: the property remains reachable by the decedent's creditors for two years after death, which means a beneficiary who sells quickly, or borrows against the house, may be selling into an unresolved claim. The beneficiary perfects title by recording an affidavit of death with a certified death certificate.

Survivorship on an account is a document, not a habit

Two names on a checking account prove nothing about what happens when one of them dies. Under the Texas Estates Code, survivorship exists only where the party who died signed a written agreement saying the account passes to the survivor, and the operative words usually sit in small type on the signature card that nobody kept a copy of. Ask the bank for that card, in writing, and read the box that was checked. A payable on death designation does the same job through a different route. An account without either one is estate property, whoever else can sign on it.

Beneficiary forms outrank the will every time

Life insurance proceeds, individual retirement accounts, employer plans and annuities go to whoever is named on the company's form, and a later will saying otherwise does not change that. The IRS is responsible for the rules governing how inherited retirement money must then be withdrawn, and those rules turn on who the beneficiary is, so the identity on the form matters twice. Check the contingent beneficiary as well as the primary, because primaries predecease people more often than anyone plans for. Where the form names the estate, or names nobody, the money comes back into probate and becomes reachable by creditors.

The community property survivorship agreement

Texas spouses may sign a written agreement that some or all of their community property becomes the survivor's outright at the first death, which is a different instrument from a will and does a different job. It does not require probate to operate, though a survivor may ask the court to adjudicate it when a title company or a transfer agent wants an order in the file. What the careful reader checks is scope: some agreements cover everything the couple owns, others cover one described tract or one brokerage account, and the rest of the community estate still needs a procedure.

What is left is what the court sees

Subtract the house that passed by deed, the accounts with survivorship language, the policies and retirement plans with living beneficiaries, and the community property covered by an agreement, and the remainder is the estate the county court is actually being asked about. That remainder decides the procedure and the cost. A residue of a car, a checking account in one name and some household goods may fit a small estate affidavit or a muniment of title, while the same family with one overlooked account in the decedent's sole name may need a full administration. Do the subtraction before choosing the filing.

The work here is document collection, not argument: the recorded deed, the signature card, the insurer's beneficiary printout, the signed spousal agreement. Gather them first, list what each one moves and to whom, and the shape of the court filing tends to declare itself. It is also the cheapest hour anyone spends on an estate, because it can turn a contested administration into a short hearing, and occasionally into no hearing at all.