How Do I Transfer Property To an Heir if the Will Isn't Valid?
Full Question:
Answer:
A will in Texas is not required to be notarized to be valid. It requires the signature of two witnesses and the signature of the testator, who signed it while of sound mind and acting of his own free will. Without having the will notarized, the witnesses may be required to appear in court to testify to the validity of the will.
When a person dies, their assets are distributed in the probate process. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.
Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
The answer will depend in part on whether the estate has been probated, and if not, the owners named on the deed, the value of the estate, and other factors. Property owned as joint tenants with right of survivorship passes automatically to the survivor outside the probate process. In such cases, procedures for transferring the deed to the survivor vary by local recording office. Typically. a copy of the death certificate is required and a fee must be paid. I suggest calling the recorder's office in the county where the property is located to inquire about local requirements.
In Texas, estates not worth more than $50,000 can qualify for a small estate administration. I suggest you contact a local attorney who can review all the facts and documents involved.
The following is a TX statute:
§ 59 PROB. CODE. Requisites of a Will
(a) Every last will and testament, except where otherwise provided by
law, shall be in writing and signed by the testator in person or by
another person for him by his direction and in his presence, and shall,
if not wholly in the handwriting of the testator, be attested by two or
more credible witnesses above the age of fourteen years who shall
subscribe their names thereto in their own handwriting in the presence of
the testator. Such a will or testament may, at the time of its execution
or at any subsequent date during the lifetime of the testator and the
witnesses, be made self-proved, and the testimony of the witnesses in the
probate thereof may be made unnecessary, by the affidavits of the testator
and the attesting witnesses, made before an officer authorized to
administer oaths under the laws of this State. Provided that nothing
shall require an affidavit or certificate of any testator or testatrix as
a prerequisite to self-proof of a will or testament other than the
certificate set out below. The affidavits shall be evidenced by a
certificate, with official seal affixed, of such officer attached or
annexed to such will or testament in form and contents substantially as
follows:
THE STATE OF TEXAS COUNTY OF _____________
Before me, the undersigned authority, on this day personally appeared
___________, ______________, and _____________, known to me to be the
testator and the witnesses, respectively, whose names are subscribed to
the annexed or foregoing instrument in their respective capacities, and,
all of said persons being by me duly sworn, the said _____________,
testator, declared to me and to the said witnesses in my presence that
said instrument is his last will and testament, and that he had willingly
made and executed it as his free act and deed; and the said witnesses,
each on his oath stated to me, in the presence and hearing of the said
testator, that the said testator had declared to them that said
instrument is his last will and testament, and that he executed same as
such and wanted each of them to sign it as a witness; and upon their
oaths each witness stated further that they did sign the same as
witnesses in the presence of the said testator and at his request; that
he was at that time eighteen years of age or over (or being under such
age, was or had been lawfully married, or was then a member of the armed
forces of the United States or of an auxiliary thereof or of the Maritime
Service) and was of sound mind; and that each of said witnesses was then
at least fourteen years of age.
__________________________
Testator
__________________________
Witness
__________________________
Witness
Subscribed and sworn to before me by the said ________, testator,
and by the said ______________ and _______________, witnesses, this
__________ day of ____________ A.D. ______________.
(SEAL)
(Signed) ___________________________________
(Official Capacity of Officer)
(b) An affidavit in form and content substantially as provided by
Subsection (a) of this section is a "self-proving affidavit." A will with
a self-proving affidavit subscribed and sworn to by the testator and
witnesses attached or annexed to the will is a "self-proved will."
Substantial compliance with the form of such affidavit shall suffice to
cause the will to be self-proved. For this purpose, an affidavit that is
subscribed and acknowledged by the testator and subscribed and sworn to
by the witnesses would suffice as being in substantial compliance. A
signature on a self-proving affidavit is considered a signature to the
will if necessary to prove that the will was signed by the testator or
witnesses, or both, but in that case, the will may not be considered a
self-proved will.
(c) A self-proved will may be admitted to probate without the testimony
of any subscribing witness, but otherwise it shall be treated no
differently than a will not self-proved. In particular and without
limiting the generality of the foregoing, a self-proved will may be
contested, or revoked or amended by a codicil in exactly the same fashion
as a will not self-proved.