Would a Deed Work for You?
Passing Your Texas Home Without Probate
(Maybe Without a Trust)
A lot of people walk into our office thinking they need a living trust just to keep the family home out of probate. Sometimes that's exactly right. But often — if a single house is your only high dollar asset — a trust may be more machinery than you actually need.
Texas gives homeowners two simpler tools for this: the Transfer on Death Deed (TODD)and the enhanced life estate deed, better known as the Lady Bird deed. People ask us about these almost every week, and from the questions they have there is a lot of confusion about them. So, here are three things worth understanding before you choose one.
1. They do the same job — just a little differently
Both deeds let you:
name who receives your home when you die,
pass it to that person without probate, and
keep complete control while you're alive — you can still sell, refinance, or change your mind.
The difference is under the hood. A TODDis a beneficiary designation for real estate, and was created by Texas statute. A Lady Bird deedis a deed that hands over a "leftover" interest now while you keep the power to undo it entirely. For many homeowners, the practical takeaway is the same: you can keep your house out of probate without setting up a trust.
2. Both carry quiet risks — especially if you do it yourself
The mistakes we see are almost always avoidable:
Your will does not override these deeds. Whoever is named on the deed receives the home, even if your will says something different. In other words, if your Will says your children are to receive equal shares of our estate, but your deed gives the property only to one of them, your deed controls. There is nothing your Will can do to correct the mistake.
They only work if recorded before death. A signed deed sitting in a drawer does nothing.
The legal description has to be exact. A street address alone gets the deed rejected.
Medicaid can be a problem. Both can help shield a home from Medicaid estate recovery, because the home skips probate — but the rules are policy-driven and unforgiving of small errors. Choose the wrong deed, or make any mistakes creating it, and Medicaid Estate Recovery rules may allow the state to put a lien on your home to recover some or all of the benefits you received. This is not the place for an internet form or a DIY project.
And neither deed is built for blended families, minor or disabled beneficiaries, multiple properties, or significant debts. Those are the situations where a trust really may be worth it.
3. The right choice depends on your facts
There's no universal winner. The answer turns on a handful of questions: Are you on Medicaid or planning for it? Is this your homestead? Will someone need to sign for you under a power of attorney? Who else is on the title? A Lady Bird deed wins in some of these scenarios; a TODD in others — and sometimes the honest answer is "you need more than a deed."
See which one fits you
That's exactly why we built a short decision tree. Answer a few plain-English questions and it points you toward the option that fits your situation — or tells you when it's time to call us.
👉 Take the 2-minute decision tree
This article is general information for Texas property owners. It is not legal advice and does not create an attorney–client relationship. Every situation is different — talk with a licensed Texas attorney before signing anything.
— Breshears Law PLLD · (817) 500-0155 · breshearslaw.com
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