A deed is a written instrument used to transfer real estate. A deed allows the current owner (grantor) to transfer Texas real estate to a new owner (grantee). The process usually involves four steps:
- Find the most recent deed to the property. It is best to begin with a copy of the most recent deed to the property (the deed that transferred the property to the current grantor). You will need information from this deed, including the exact way that the current grantor’s name was worded and the legal description of the property. If you don’t have a copy of the deed on hand, you can usually get it from the county clerk’s office.
- Create a new deed. The next step is to create a new deed that transfers the property from the grantor to the grantee. Several different types of deeds can be used to transfer property, and the information needed for each type can differ depending on your goals. Our Deed Generator uses an easy interview to collect this information and creates a deed that corresponds with the choices you made in the interview.
- Sign and notarize the deed. Once you create the deed with our software, it is delivered to you immediately, along with a set of customized instructions for completing the transfer. The deed may also include supplemental agreements—such as survivorship agreements or marital property agreements—needed to accomplish your goals. The grantor must sign the deed in front of a notary and have his or her signature notarized. Depending on your goals and the type of deed, the grantor’s spouse may also need to sign documents. The grantees need not sign the deed, but may need to sign related agreements in some circumstances.
- File the documents in the county land records. The deed and any related agreements should be filed in the land records of the county where the property is located. The county clerk will require a recording fee. Recording fees can vary, but usually range from $11.00 to $30.00 for the first page and $4.00 for each additional page.
When you create a deed with our Deed Generator, you will receive a set of instructions (Next Steps) that explains each step.
Types of Texas Deeds
The type of deed that you will need can differ depending on your goals. In Texas, four types of deeds are defined by the warranty of title that they either provide or don’t provide:
- Texas Quitclaim Deed Form – a quitclaim (release) of property that provides no warranty;
- Texas Deed Without Warranty – a transfer of property that provides no warranty;
- Texas Special Warranty Deed Form – provides a warranty that is limited to the time when the grantor owned the property; and
- Texas Warranty Deed Form – provides a full warranty that covers all title defects, including those that arose before the grantor acquired the property.
In Texas, there are also three types of deeds used for estate planning purposes. Each of these deeds is named after the probate avoidance feature it provides:
- Transfer-on-Death Deed (TOD Deed) Form – allows the grantor to name a beneficiary to inherit the property at the grantor’s death;
- Life Estate Deed – creates two classes of owners (a life tenant with rights to immediate possession of the property and a remainder beneficiary to inherit the property on the death of the life tenant);
- Lady Bird (Enhanced Life Estate) Deed Form – a special form of life estate deed that gives the life tenant retained control over the property, including the ability to change his or her mind without the consent of the remainder beneficiaries.
There is overlap between these different categories. For example, a lady bird deed could also be a quitclaim deed if it provides no warranty of title. Our Deed Generator can create any of these deeds, depending on the choices you make in the interview.
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Texas Deed Requirements: Validity and Recording
To be valid and eligible for recording, Texas deeds must meet several requirements. Some requirements are specified by law; others are a matter of customary best practice. These requirements include:
- The deed should be printed on letter-sized or legal-sized white paper that is of a sufficient weight to prevent the ink from bleeding through to other pages. Texas law does not require any specific margin or heading, but counties may impose their own requirements. At a minimum, the top page should have a sufficient margin to allow the clerk to stamp the deed with the proper recording information.
- The first line of the deed (beyond the notices and addresses) should identify the name of the deed.
- The deed must be printed in a font that is clearly legible. Although some counties permit 8-point font, 10-point font is preferred and 12-point font is even better.
- The deed must include a mailing address of each grantee. Prop. Code § 11.003.
- The deed must be acknowledged by a notary public ( Prop. Code § 11.008) and the acknowledgment should track the form specified by Section 121.007 of the Texas Civil Practice and Remedies Code.
- The deed must include a valid legal description that accurately identifies the property. AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008).
- The deed should not include a social security number and must include a written notice of confidentiality rights in 12-point boldfaced type or 12-point uppercase letters. Prop. Code § 11.008.
The deeds prepared by our Deed Generator were designed by licensed Texas attorneys to be eligible for recording in all Texas counties.
Spousal Ownership of Texas Real Estate
If the owners are married to each other, their legal ownership of property is governed by Texas community property law. Texas community property law treats most real estate acquired during marriage as belonging to both spouses, even if the Texas deed only lists one spouse.
Real estate held as community property does not automatically include survivorship rights. On the death of one spouse, the surviving spouse will continue to own his or her one-half interest in the real estate. The remaining half will be governed by the deceased owner’s will or Texas intestacy law. If the spouses want the surviving spouse to inherit the community property, they can create community property with right of survivorship using a survivorship agreement.
If the property being conveyed is the couple’s marital home (homestead property), Section 5.001 of the Texas Family Code requires the signature of both spouses to convey the property. A deed of a Texas homestead that contains the signature of only one spouse is invalid.
Forms of Co-Ownership of Texas Real Estate
There are several ways that multiple owners may acquire title to Texas real estate by deed. These forms of co-ownership usually turn on whether a right of survivorship is included. A right of survivorship transfers the property to the surviving owners upon the death of one of the owners. If the form of co-ownership does not include a right of survivorship, the property is not transferred to the remaining owners and instead becomes a part of the deceased owner’s probate estate.
Note that a right of survivorship requires a human lifetime to determine when the right of survivorship takes effect. Because businesses and trusts do not have a “lifetime,” a right of survivorship when one or more of the co-owners are businesses or trusts.
Section 101.002 of the Texas Estates Code provides a default rule that jointly owned property does not include a right of survivorship. But this is only a default rule. There are several ways joint owners can use Texas deeds and related documents to change this result.
Texas Tenants in Common (Joint Tenants Without Right of Survivorship)
If the owners do not want a right of survivorship, they may hold title as tenants in common (also called joint tenancy without right of survivorship). Owners that hold title to Texas real estate as tenants in common are under the default rule mentioned above. When one owner dies, his or her interest passes through his or her probate estate. It does not automatically pass to the surviving joint owner.
Ownership as tenants in common is complicated by Texas community property law. With certain exceptions, Texas community property law presumes that any interest in real estate acquired by a married person during the marriage is jointly owned as community property with that person’s spouse. That rule applies even if the spouse is not listed on the deed to the property. This means that—in addition to the wording of the deed—actual ownership of the tenant-in-common interest depends on:
- the marital status of the person listed on the deed;
- whether he or she acquired the property during the marriage; and
- whether any special circumstances change the characterization of the marital property from community to separate property.
Tenancy in common is a good alternative for co-owners that want their interest in Texas real estate to pass to their heirs instead of the surviving joint owner. But tenancy in common comes with a significant downside: Because there is no automatic survivorship right, Texas probate may be required to transfer title to the deceased owner’s family.
Texas Joint Tenants with Right of Survivorship
As the name suggests, owners that hold title as joint tenants with right of survivorship have a right of survivorship in the property. Upon one owner’s death, his or her interest will automatically transfer to the surviving joint owner or owners.
In many states, creation of a joint tenancy with right of survivorship only requires a short phrase in the deed to indicate that form of ownership. Texas law is different. If the new owners want to take title as joint tenants with right of survivorship, a separate survivorship agreement is required or recommended.
Joint tenancy with right of survivorship is a useful tool when the owner intends for the property to pass to the surviving joint owner. On the death of one owner, transfer to the surviving owner is relatively simple and can often be accomplished outside of the probate process.
Although joint tenancy with right of survivorship is very common in other states and is allowed by Texas law, some third parties—like lenders and title companies—have been reluctant to recognize this form of ownership. Some title companies will not insure joint tenancy with right of survivorship. Many lenders are uncomfortable with joint tenancy with right of survivorship language in the loan documents. If you plan to mortgage the property, check with the lender before creating a joint tenancy with right of survivorship.