I believe that most Texans should have 2 deeds on their properties. One deed is a warranty deed and it gives them present ownership. The other deed is a transfer on death deed which gives someone else future ownership. The problem is that most people falsely believe that their spouse will automatically own the entire home when the first spouse dies. After all, both spouses names are on the deed, right? Well, there's several problems with this assumption. First, warranty deeds are typically held as tenants in common rather than as Joint Tenants with Rights of Survivorship. As a result, the surviving spouse does not own the entire interest in the property is passes through the court process. That could take months and thousands of dollars. Truly, the primary home is often the only asset that needs to get probated since many other accounts such as bank accounts, investment accounts and life insurance typically pass by means of beneficiary designation. Second, the surviving spouse may not even be the rightful heir. For example, if the property were the separate property of the deceased spouse and if deceased spouse had children from a prior relationship, then the surviving spouse will likely be disinherited of that property, even though the surviving spouse would likely have the right to live in the primary homestead for the rest of his/her lifetime.
Further, a transfer on death deed may actually save you the costs associated with 2 different probate proceedings. How? Well, if your affairs are in order and everything else passes by means of beneficiary designations, then a transfer on death deed could keep you out of court upon the 1st spouses death and then again at the death of the second spouse.
A transfer on death deed is a fraction of the cost of probate. So I highly recommend that many people have a TODD on their property or properties so that they can pass quickly, efficiently and without having to involve a court or attorneys necessarily.
Transfer on Death Deeds can be revoked by either party at any time.
Transfer on Death Deeds need to be equally distributed, so this can cause a problem for people who want to leave different percentages to different people.
Under present law, transfer on death deeds also have the added benefit of not be subject to medicaid recovery, though this could change in the future.
In summary, you should speak with the attorneys at Mike Massey Law who can help discuss this with you. We are lawyers for estate planning, wills, revocable living trusts, probate, personal injury, deeds and LLC formations. We would be happy to discuss with you the potential benefits and drawbacks of a transfer on death deed.