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Texas now allows a Transfer On Death deed

Richard M.  Alderman Interim Dean of the Law Center

Richard M. Alderman
Interim Dean of the Law Center

Q. I was told that Texas now allows me to have a special type of deed that transfers title to my home after my death without probate. Is this true? What is it called?
A. As of September 1, 2015, Texas allows an owner of real property to transfer the property to his or her beneficiaries by executing what is called a Transfer On Death (TOD) deed. This type of deed effectively avoids the need for probate to transfer the title to real property after death. Homeowners can now transfer real property after death without incurring legal fees or court costs.
The TOD is similar to providing a beneficiary on a bank account. The deed also allows the owner to name a primary and an alternative beneficiary who will inherit the property upon the owner’s death. Because the deed does not take effect until death, the owner retains all ownership rights during his or her lifetime. The TOD deed also may be cancelled by filing a new TOD deed with a different beneficiary, or filing a notice of cancellation where the TOD deed was filed.
To be effective, the TOD deed must meet all the formalities of a normal deed, must be signed and notarized. It them must be recorded before the transferor’s death. If you believe that this deed is right for you, there is free information and forms for a TOD deed available from the Texas Legal Services Center. Visit texaslawhelp.org and search for “Transfer On Death deed.”
Q. My apartment lease was up in January. Since that time we have had a month-to-month agreement. I am now moving out. I gave proper notice. I am afraid my landlord will not return my security deposit. Can I require the landlord to use my security deposit for the last month’s rent?
A. A security deposit is designed to compensate the landlord for damage to the apartment. Under the Texas Security Deposit Law, assuming you gave proper notice and a forwarding address, a landlord must either return your security deposit, or give you written notice of why it is being withheld within 30 days of when you move out. A landlord who violates this law is considered to be acting in bad faith, and may owe the tenant three times the deposit plus $100.
You cannot, however, require the landlord to use the deposit to cover the last month’s rent. In fact, if you do, the landlord has the right to sue you for three times the deposit plus another $100. My advice is to pay your rent, and if your security deposit is not properly returned, use the Texas Security Deposit Law.
Q. Is it legal for an apartment to rent to only “seniors” and prohibit children? Isn’t this discrimination?
A. Under the Fair Housing Act, an apartment generally may not discriminate based on “family status,” and this includes refusing to rent to a family with children. Turning away a family because it had children would be unlawful discrimination.
But there are exceptions in this law for “seniors only” apartments. The “62 and older” exemption is the most straightforward. To meet this exemption, every occupant at the property must be at least 62 years old. The “55 and older” exemption gives a landlord more leeway when renting apartments. Under this exemption, at least one occupant in at least 80% of the apartments must be at least 55 years old. In addition, the community must adhere to a policy that demonstrates intent to house people who are 55 or older.
Q. If I owe creditors and they file a lawsuit against me, can they garnish or do anything with my 401k?
A. In Texas, certain property is “exempt” and cannot be taken by creditors, even if they sue. Included within the list of exempt property are retirement funds, such as a 401k. In other words, the creditor could not garnish the money in that account.


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