My father is deceased and my mother wants to sell property that was in both names

Full question:

The property in question is in El Paso, TX, while my mother resides in California. Does my mother need a warranty deed to provide to TX recorder's office, and if so, what would it say? She is considering selling the property. My father, now deceased, set up a living trust himself, for this property, which is held in both his and her names as they were married, and still were when he died, and because they both owned the property, it seems as though he did not address the issue of transferring title to her upon his death.

• Category: Real Property
• Date: 04/07/2025
• State: Texas

Answer:

Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. This is called a "right of survivorship." State law, which varies by state, controls the creation of a joint tenancy in both real and personal property, such as houses, bank accounts, and corporate stocks. Generally, for transfers to two or more persons who are not husband and wife, the deed or conveyance must expressly state an intention to create a joint tenancy by noting that the property will be held not as tenants in common but as joint tenants with rights of survivorship. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs.

A joint tenancy between a husband and wife is generally known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment.

Commonly, beneficiaries are specified in a trust agreement and the agreement usually specifies who should receive what assets or proceeds from the trust on the death of the Trustor, or sometime thereafter. Generally, if property is transferred into a trust, the trustee holds the title to the property and must prepare a deed to transfer it to the beneficiary, who is determined by the terms of the trust. A trustee's deed is a deed executed by a trustee conveying land held in a trust. I suggest contacting a local attorney who can review all the documents and facts involved.