Quick Title Clearing for Disaster Survivors
A clear title generally means that no one else has a financial interest in the property, and there is no question of who owns the home. If a person looked at the records for a property, they would see that one person sold it to another person, and they transferred to another person, who then sold it to another, and so on. When a property is not legally transferred or deeded over to another person, the title or ownership of a property can become “cloudy.” The most common reason for a cloudy title is a family member passed, and an heir began living in the home without going through a probate administration to transfer title.
A clear title is essential. Most Disaster Recovery Assistance programs, including FEMA, require that you show proof of ownership to qualify. Homeowners with a “cloudy title” may delay getting access to these programs. Additional information on FEMA proof of ownerships requirement can be found on this website or by listening to our podcast “Recovery After a Disaster.”
Ways to Clear Title for A Homeowner:
Use an Affidavit of Heirship
- An affidavit of heirship can be used when someone dies without a Will, and the estate consists mostly of real property titled in the deceased’s name. It is a type of affidavit used to identify the heirs to real property when the deceased died without a Will (intestate).
- Record the affidavit with deed records in the county where the decedent’s real property is located. It does not transfer title to real property. However, Texas Estates Code chapter 203.001 says it becomes evidence about the property once it has been on file for five years. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.
- Two disinterested witnesses should sign an affidavit of heirship. To qualify as a disinterested witness, one must know the deceased and their family history but cannot benefit financially from the estate. Each disinterested witness must swear under oath as to specific information about the deceased. Usually, a title company Will accept the affidavit to show the chain of title to sell the real property, but the heirs should check with their title company.
- The person witnessing the affidavit should not be an heir, related to the deceased, or have an interest in the estate. When using an affidavit of heirship in Texas, the witnesses must swear to the following conditions:
- They knew the decedent.
- The decedent did not owe any debts.
- They know the true identity of family members and heirs.
- The person died on a specific date in a particular place.
- The witness will not gain financially from the estate.
- When disposing of a deceased person’s property or transferring the deeds to the heirs, it is necessary to document the title has passed from the person who has passed away to the heirs. A probated Will may establish the lawful ownership, though even when a Will has been probated, the affidavit may occasionally be required before a deed transfer is affected.
- However, if the deceased passed away without leaving a Will, the heirship’s affidavit can establish legally who the heirs are, the property the deceased left behind, and the proper disbursement of the property.
- Additionally, the affidavit can usually be executed without involving the probate court. It can speed up transferring ownership of the property if there are no disputes over the property. For this reason, even in cases where a Will exists, some people may choose to execute an affidavit.
- What the Affidavit Accomplishes
- The affidavit spells out who the legal heirs to the property are, what the property is, and who gains ownership of the property—legally specifying the decedent’s heirs establishes the rights and responsibilities of those heirs to dispose of the decedent’s property and wrap up the affairs on behalf of the deceased. A full list of the decedent’s property is included in the affidavit and establishes what property is being transferred to heirs. For land, this includes a legal description of the property of the sort found on the title deed.
- The affidavit also serves as an instrument for transferring ownership to the heirs in lieu of a deed transfer. The affidavit must be filed with the county recorder to establish the land ownership in the same way a deed would.
- Who Is Party to the Affidavit of Heirship
- The affidavit’s primary parties are the heirs themselves, the spouse or registered domestic partner, and any living children or blood relatives of the decedent. It may also involve friends of the decedent or even a former spouse. The affidavit may also include information about the decedent heirs who have passed away and who their heirs were.
- Witnesses must sign the affidavit under oath before a notary public.
- The witnesses are usually required to know the decedent, the date they passed away, the names and birthdates of the family members and heirs, and whether the decedent had any outstanding debts at the time of their death. The witnesses Will also usually be required to swear that they Will not benefit financially from the estate themselves and can be held for perjury if their statements are false.
- Executing the Affidavit
- Once the witnesses have signed the affidavit in front of the notary, the document may be accepted as legal proof of heirship and ownership transfer.
- If real estate was being transferred in the affidavit, it must also be filed with the county recorder’s office in the county where the land is located.
Muniment of Title
Muniment of Title is a legal document that shows evidence of ownership of an asset. Muniment simply means written evidence of title to the property. This includes deeds, wills, titles, or court judgments.
Heirs to an estate may file this type of action for Will’s probate using the Muniment of Title. In this regard, the petitioner asks the court to recognize them as the beneficiary of the estate’s properties and request the property titles be transferred to them.
Advantages of Muniment of Title
If you know how to get a Will probated in Texas, you know that the appointment of an estate Executor or Administrator is typically required. However, the Muniment of Title offers a streamlined process that bypasses the typical administration of a Will.
By presenting the Will before the probate court, the parties are asking the judge to recognize them as owners of the properties designated to them and that no other court action is necessary on the estate. In this case, the Will acts like a deed proving ownership over a particular property.
Since the term muniment signifies an assertion of claim over particular property, Texas Muniment of Title affords an easy and less expensive method of settling the decedent’s estate.
This method, however, is most effective with regard to real properties. The same cannot be said for bank accounts or similar assets of the decedent. One of three types of probate in Texas, Muniment of Title, is unique to Texas and generally not understood by attorneys in other states. Thus, it can be near impossible to get an out of state mortgage company, bank, or other financial institution to accept a muniment.
Requirements for Muniment of Title
For a Muniment of Title to operate, there are a few requirements that must be met.
- The decedent must have died, leaving a Will and real properties that are located in Texas.
- The probate court must have jurisdiction over the decedent’s estate, and the citation has been served and returned.
- The estate must also have no outstanding debts, except obligations secured by liens on the estate (such as real estate).
- There is no need for administration of the estate.
When these requirements are met, the Will may be probated as a Muniment of Title in Texas. The probate proceedings may also carry on without the need for appointing an Executor or Administrator of the estate.
Small Estate Affidavit
What criteria qualify an estate for a small estate affidavit?
Chapter 205 of the Texas Estates Code allows the heirs at law of someone who died intestate to file a small estate affidavit with the court as an alternative to going through the probate process. For the distributees to file the small estate affidavit, the following must be true about the estate:
- No petition for the appointment of a personal representative is pending or has been granted;
- Thirty days have passed since the decedent has died, and
- The estate’s assets, excluding the value of the decedent’s homestead and exempt property, are less than or equal to $50,000.
How do you prepare a small estate affidavit?
The small estate affidavit must be sworn to by two disinterested witnesses—that is, people over age 18 who are not heirs to the estate. It also must include a list of all known estate assets and liabilities and contain the relevant family history that shows each person’s right as an estate heir to receive estate assets.
What real property can be transferred with a small estate affidavit?
The small estate affidavit Will only transfer the title of the deceased person's homestead. Any other real property owned by the decedent cannot be transferred using or filing a small estate affidavit. To transfer the decedent’s homestead to the distributees, the real property, and an accurate legal description must be listed in the affidavit among the deceased's assets. Once the judge approves the small estate affidavit, a certified copy of the affidavit, and the court order approving, it must be filed with the county’s real property records where the real property is located.
And as always, recommend a Transfer on Death Dead (TODD) to prevent the next generation from having to clear the title again!
Clear title for trailer home:
Texas does not use titles to show ownership.
In 2003 Texas changed from Titles to Statements of Ownership and Location or SOLs. A primary reason is to track and tax every mobile home, no matter the age or condition.
Buyer and seller should have signed and notarized the following:
- Application for Statement of Ownership and Location ($55)
- Texas Seal ($35 per section) if there is not currently one present.
- Your Bill of Sale as a receipt of the transaction. (Not notarized)
Application and templates for the Bill of Sale can be found at https://www.tdhca.state.tx.us/mh/ownership-location.htm.
The site also has a FAQ regarding mobile homes and some of the issues that arise.
What is a Texas Seal, and How do I Check for Texas Seal or Hud Label
A Texas Seal is a metal plate with a number used to identify a manufactured home that does not have a HUD Label. Texas law requires that a manufactured home have either a HUD Label or a Texas Seal attached to it before any home sale. The Texas seal is a metal decal typically found at the rear of the home. The Seal/label number is a number that HUD assigns to each section of each manufactured home; for example, a double-wide will have two (2) seals/labels, and a single-wide will have only one (1).
Seal/label numbers always have a 3 character prefix, such as TEX. The prefix is always followed by 7 digits, such as 0012345. The entire number is 10 digits. Examples of complete Seal/label numbers: TEX0012345, TXS0045678, ULI0087654
If No Seal or Label is found? This may be for a variety of reasons. If there is/are no HUD Label(s) or Texas Seal(s) on your home, a Texas Seal Will need to be purchased and issued to each section of the mobile home at an additional cost of $35.00 per section of the home. Single-wides add $35, and double-wides add $70. (See fees below in final section) This “No label or no seal” Will be notated on the SOL Application
Mail ALL forms with CORRECT money order or cashier's check to:
Manufactured Housing Division
P.O. Box 12489
Austin, Tx 78711-2489
- Mail all forms within 60 days of the Bill of Sale date.
- Allow 15 days for the new Statement of Ownership and Location.
The process to clear the title may take time. If you are assisting a person with disaster recovery, always check for the proper title, and if they don’t have it, immediately begin getting it. It can keep them from losing valuable time with a FEMA appeal or losing out of funds entirely if a local runs out of funds before they can become qualified.
Belinda Martinez/Staff Attorney Lone Star Legal Aid