Deed questions

[Dimeolas]

What is the name of your state?Teas
Dad has asked me to plan his estate, he is 92. His wish is to avoid probate and make it as easy as possible. We agreed to do a ladybird deed on the house. he has a mortgage out. Today I went to get the deed from the safe and the deed is gone. One issue is that dad doesnt remember well and sometimes will tell me an answer that isnt true. So I verify everything. He didnt remember where it went to. Mom passed in April and her name was on the deed so he said he sent the deed off to have mom's name removed. But as I understand it he could only do that if he probated her will. As he claimed all her assets were jointly owned he never sent her will thru probate. He doesnt seem concerned but I have to get this fixed. Other than needing to know where it is, I need the exact property description for the ladybird and I need to know if Mom is on the deed and if there is language allowing survivorship and dad can file a form and void probating her will.
Sorry but I have several questions.
Would he have had the deed with a mortgage or would they hold it til he pays it off?
Im having trouble getting an answer about who his mortgage loan is with, I believe he went thru Chase but would the lendor be Chase and I can get all the info on the mortgage there or would they go to a separate company?
I talked to a very nice ladt at the records office and they have a great searchable database where I can search...but I dont find a deed. Only thing I come up with is a 'deed of trust' but that looks like a mortgage document?
Is there a better term I should search for?
That office is about a 40 minute drive so would be so much better if I dont have to drive into downtown.
I have spent a couple hours googling and trying to find answers and find some conflicting info.
If anyone can provide some good direction thanks very much.
Tachi

 

[adjusterjack]

There is so much you don't know that I think you will be doing more harm than good if you continue on your own. I suggest you get an estate planning attorney involved. What you pay now is a fraction of what it will cost you after your Dad passes and you have to fix the mess.

 

[Dimeolas]

Yes I will be reviewing plans later this week with an attorney, however I need to find the deed and I need to understand the process. To be honest I cant afford alot of attorney visits. His estate is easy and very simple. The attorney has already agreed we should do a Ladybird on the house and a Trust on the possessions. So yes working on recommendations. However, I am not very knowledgable on mortgages and deeds and need to understand where to go and what to do. I think im perfectly capable of running down the deed if I understand.

 

[FlyingRon]

Unless he has very little assets (less than $75,000) there is no way to "avoid probate." Probate is an essential part of any non-trivial estate in Texas. Do not believe the hype a lot of shady financial advice givers will tell you.

The simple answer to finding the deed is you go to the county where the property is located and the office there that registers land deeds. The more comprehensive answer is you pay for a proper title search. Understand that real estate title is not like a car. There's no "last deed" that supersedes all over. A deed is just something that conveys some aspect of ownership to another party. You have to examine all the deeds to understand who actually owns it (and what future rights may be). The presence of the mortgage doesn't really change any of this. Again, this is not a CAR. The deeds of ownership are certainly recorded and in addition, some instrument (be it a mortgage lien or a deed of trust) represents the bank's security in the property. Some land records are nicely computerized, some aren't. This is why it behooves you to pay a professional to do the research. In addition, that professional will also sell you a warranty (title insurance) that his determination is accurate.

Your understanding on how to deal with the dead spouse is probably incorrect. Joint owners or life tenants who die typically only need a death certificate filed with the above-mentioned land records office to indicate that they (and their estate) no longer hold an interest in the property. Probate is not required to do this. Of course, if there were other assets in the marital estate, you may have to probate (or go through the small estate procedure).

As poitned out, get your father to a proper elder law attorney. There's more in play here than just the deeds. You can also get powers of attorney (durable and medical), advanced medical directives, etc... in addition to determining the best way for asset distribution. Further, if you do this half-assed there's great possibility to make irreversible errors both on the estate and possibly disqualifying your father for services he may n eed.

 

[TrustUser]

unless does texas not recognize a trust, the op should be able to avoid probate

 

[FlyingRon]

Perhaps, perhaps not. This is why he needs an attorney rather than guesswork.

 

[Dimeolas]

Thanks folks,
Actually it i perfectly possible to avoid probate. The estate is not large except for the value of the house. No life ins, bank accts are taken care of, vehicle is taken care of, just a ladybird on the house and a Trust on the possessions. Other than the mortgage company there is no other claim. Said mortgage was actually paid off until a few years ago when he refinanced. As I came to find out he wouldnt be holding the deed when there is a mortgage out so am is thinking he has it based on false memory. Will see if the courthouse can dig it up. The atty had said mom needs to be off the deed before we can change it but I wont really find out how until tomorrow. The info I have read is that in order to just present a death cert there has to be proper language in the Deed stating something to the effect of 'right of survivorship', something like that. I hope that you are correct however.
AS for the Deed, he has been the sole owner of the house since it was built so that shouldnt be an issue if the courthouse has record. I know that they dont always record it but its law that they do, I am probably just awful at 'supersearch'. lol



In any case thanks for the help

 

[FlyingRon]

When you refinance there will be a new mortgage. I don't know what you mean by "wouldn't be holding a deed." Again, mortgages aren't like car titles. You have deed to the property even though there is a mortgage (some other security instrument like deed of trust will be recorded).

In the case of a Life Estate (ladybird) deed that dies with the life tenant. You are right, in Texas, a joint tenancy doesn't itself imply survivorship rights, you need such listed explicitly (Joint Tenants with Right of Survivorship). If the title was held in common or with simple joint tenancy, then the wife's estate needs to be probated. If the title was held with survivorship or it was the separate property of the husband (and the wife had a life tenancy) then he got full rights back to the property when she died and it only needs to have the death recorded.

"Since it was built" is entirely immaterial because the HOUSE is just a fixture on the land. It is the LAND that is deeded from party to party.

 

[adjusterjack]

just a ladybird on the house and a Trust on the possessions.

A "ladybird" deed might not be the way to go. Since 2015 Texas has allowed for Transfer on Death deeds (much simpler):

https://statutes.capitol.texas.gov/Docs/ES/htm/ES.114.htm

As for possessions, there shouldn't be any need for a trust. Personal property is presumed to be owned by he who possesses it. When you inherit the house everything in it is yours when you walk in the door, assuming that there are no other heirs to give you an argument. There wouldn't be any need to open probate on household goods that aren't worth much of anything.