New, but not improved, wording for ‘Transfer on Death’ deed

The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: I have a valid Texas will. My only child is to inherit all my assets at the time of my death. Is there a way for my daughter to inherit the house without going through probate? Would filling out the “Transfer on Death” deed suffice?

A: The Transfer on Death deed form should work for you, assuming you don’t have any other assets that require probate.

However, it is worth noting that the Texas Legislature just made a number of changes to the statutory form. These changes take effect Sept. 1. If you sign and record the Transfer on Death deed after that date, be sure to use the language found in the revised form.

The changes were made to address the problem of what happens if a beneficiary named in the deed is not living. For instance, in your situation, who do you want to inherit your home if your daughter does not survive you? Would you want the home to pass to your daughter’s children, or to someone else or several other people?

While these changes are a good idea, the problem with the new language is that much of it is difficult to understand, even though the form was created for people to use without an attorney. Here is one sentence from the statutory form:

“If no primary beneficiary survives me and the anti-lapse election is not chosen or that election is chosen, but a deceased primary beneficiary is not a child or other descendant of mine or of one or both of my parents, I grant and convey to the alternate beneficiary or beneficiaries my share in the property that otherwise would have transferred to the deceased primary beneficiary, to have and hold forever.”

I had to read this over and over to understand what it means. It will no doubt create confusion for the public, and I predict that when the Legislature meets again in two years, attempts will be made to simplify this language.

Q: A relative died, and in his will he left everything to his mother. All of his property was acquired after he was divorced. His ex-wife was named executor of the will, and she is holding up the probate. Can she be removed as executor?

A: If your relative wrote his will while he was still married to his future ex-wife, then under Texas law she is automatically removed as executor. The alternate executor would be the one to serve.

But if he wrote the will after they were already divorced, then she would still be the executor. In this case, if she refuses to act and won’t start the probate, your relative’s mother can hire a lawyer who will take steps in court to force her to act.