A 2015 article on mysa.com by probate expert Paul Premack brought my attention to an interesting legal topic relating to what happens to your house when you die in Texas.

Many Texans assume that the surviving spouses automatically inherits the home upon death. This assumption may be incorrect.

It is true that spouses automatically have homestead rights in the couples’ home after the first spouse’s death.  However, homestead rights are not the same as ownership rights.

For example, under Texas law, if a husband dies without a will and with children from a previous marriage, his wife will retain her homestead rights in the house, but she will not inherit complete ownership in the home.  “Homestead rights” means she will have the right to live in the home for so long as she chooses, but full title will not be in her name… she will be a co-owner of the home with her husband’s children from a previous marriage.

At our Texas probate law office, we encounter the above scenario all too often.  We meet with widows all the time, and they usually assume that they automatically inherit everything from the deceased spouse.  That assumption is incorrect, especially if the deceased husband had children from before the marriage.

How can you avoid this outcome?  How can you make sure that your spouse will inherit your house upon your death (or vice versa)?

It’s simple–get your Last Will & Testament drawn up by a Texas estate planning attorney.  If you want your spouse to inherit complete ownership in your house upon your death, then you need to state this in your legally binding last will and testament.  

In some situations, your estate planning attorney may recommend documents in addition to a Will, such as a trust or deed.  However, even a valid Texas last will and testament will ensure that your spouse will inherit the home. 

You have worked hard to own your home, so it makes sense to make sure that it falls into the right hands after you pass away.  Attorneys are also counselors, which means that they counsel clients on how to achieve their goals.  Wills and Estate Planning is about much more than putting ink on a page.

As Mr. Premack notes:  “Because the wording of your Will matters, you should always go to a real live qualified Texas lawyer. Do not make a Will online unless that online service connects you directly with a real live qualified Texas lawyer. Services like LegalZoom fail in almost every way (they are cheap because you are getting legal services from a computer program, not from a lawyer). If your home is important to you, if the time you spend earning the money to pay for the home is important to you, if you want to protect your spouse in case of your death, then you need to see a real live qualified Texas lawyer and make a valid, effective Texas Will as soon as possible.”

If a spouse dies with a Will or dies without a Will, in Texas, ownership in the home does not transfer automatically.   If there is a Will, title to the house can be transferred by having the executor of the will probate the estate in court.  If there is no will, then a family member (usually the surviving spouse, a son, or a daughter) must go to probate court to initiate the legal process to transfer title to the property in the county’s real property record.

Speaking as a Texas estate planning attorney who has prepared thousands of wills in Texas, I can tell you transferring title to a house is much better if the person died with a Will.  The family is happier, the legal process is cheaper, the legal process is faster, and the legal process is easier.



Visit www.ShuttLawFirm.com for more information on transferring the house after death, Texas spouse homestead rights, Texas letters testamentary, how to avoid probate in Texas, letters of administration, what to do if mom, dad, or other family died without a will, or serving as executor of the estate, contact Richardson, Texas lawyer Isaac Shutt at ishutt@shuttlawfirm.com.

Shutt Law Firm’s office is conveniently located just north of Dallas, TX, near the intersection of highway 75 and Arapaho Road in Richardson, TX.


You can also call the expert estate planning attorneys at Shutt Law Firm at (214) 302-8197 for more information on the topic discussed in this article or to discuss a different legal matter. Please consider the Shutt Law Firm if you need letters testamentary or probate lawyer in Dallas, Richardson, Plano, Allen, McKinney, Garland, Addison, TX or surrounding North Texas area.


DISCLAIMER: Nothing in this brief article constitutes legal advice. The information provided herein is merely provided in the spirit of education. If you have a legal question, you should consult an attorney for your specific legal situation. Further, nothing in this article shall be construed to have started an attorney-client relationship. No such relationship exists until both you and attorney Isaac Shutt sign an engagement letter with the Shutt Law Firm, PLLC.