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Effective September 1, 2019 the Texas legislature has changed the law regarding Transfer on
Death Deeds and effectively deleted the fill-in-the-blank forms that many people had relied
on. So what does this change mean? Let’s answer some of the most common questions.

Your already-recorded deed on the old form is probably fine.

If you had filled out and recorded a deed using the old form, everything is probably OK. The
old forms are going away not because they are defective, but because they are inconvenient.
The ones that are already recorded in county records (recordation is key! These deeds are
not effective until recorded!) are almost certainly not going to be affected by this change –
when the current owner-grantor dies, these deeds will still be effective at transferring the legal
title to the property (once the proper affidavit and death certificate are executed and
recorded). If you’ve had a transfer on death deed drawn up and recorded recently, you can
rest easy – you don’t need to do anything.

New forms are coming soon! … Maybe.

The Texas legislature has asked the Texas Supreme Court to come up with better forms that
can replace the old ones. That would certainly be nice – having a good, reliable form is
definitely valuable. But getting any branch of government to do anything is… let’s just say
“not a sure thing.” And on top of that, there’s no deadline or timeline attached to this request,
so the Texas Supreme Court might decide to take their sweet time. Or, they might just decide
not to do it at all. After all, we all remember learning in school that the legislature is supposed
to make the laws and the courts interpret them. It’s entirely possible that the Texas Supreme
Court will see this as outside the scope of their job description and say “No, legislature –
we’re not going to do your job for you.” Or who knows, maybe they’ll come up with extremely
easy-to-use and helpful new forms in a timely fashion. That would be nice.

You can actually still use the old forms if you want to.

If you’ve seen these forms, you may remember a bunch of nonsense legalese at the bottom
about contingent elections and “per stirpes” and such. Those parts helped make the forms
functional for a lot of different scenarios, but many non-attorneys had trouble figuring out what
they meant. This is precisely why the legislature is phasing them out – they were supposed
to be a convenience provided to anyone who wanted the ease of a fill-in-the-blank solution,
but they weren’t actually easy to use in practice. But no one has suggested that they’re not
effective – they still meet all the legal requirements to do the thing they’re suppose to do. In
theory, removing these forms from the text of the law means that courts will no longer
automatically presume that they meet all the legal requirements. A court might therefore – in
theory – hear a case that convinces them this old form actually is bad and doesn’t work. But
in reality, the requirements of the law are very straightforward (name, address, property
description, identification of beneficiary, etc.) – so, what are the odds that a court is going to
take issue with a form that seems to very obviously have a separate blank line for each legal
requirement? Common sense would suggest that scenario is pretty unlikely. Of course,
common sense is no guarantee, and you’d be well-served to consult with an attorney if you
have any concerns. But at this moment in time, the old forms are still looking pretty good.

Alexander McCann

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