Pass Your Texas Home Without Probate (and Maybe Without a Trust)
A lot of people walk into our office convinced they need a living trust just to keep the family home out of probate. Often that's exactly right, because they also have other financial assets to deal with, not just their home. But in many cases — whose house is their only significant asset and who have a clear set of heirs — a trust is more machinery than they 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, 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; so you can still sell, refinance, or change your mind.
The difference is under the hood.
A TODD is a beneficiary designation for real estate, created by Texas statute.
A Lady Bird deed is a deed that hands over a "leftover" interest now while you keep the power to undo it entirely. For most homeowners, the practical takeaway is the same: you can keep your house out of probate without setting up a trust.
2. Both carry hidden 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 (or trust, for that matter) says something different. So, if your Will says your children are to inherit equally, but you deed your home to only one child, only that child will inherit your home. Your Will can’t change that.
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 is technical. 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. This is not the place for an internet form, completed by someone who doesn’t understand for sure what information goes in each blank, much less the risks associated with the simplest mistake.
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 the property 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."
Want to know which solution fits your situation?
That's exactly why we built a short decision tree, to help you know which solution is best for your circumstances. Answer a few plain-English questions and our decision tree points you toward the option that most likely fits your situation — or tells you when it's time to call us.
👉 Take the 2-minute deed decision tree
This article is general information for Texas property owners. We created and offer it for educational purposes only. It is not legal advice and does not create an attorney–client relationship with Breshears Law. Every situation is different — talk with a licensed Texas attorney like ours before signing anything.
— Breshears Law PLLC · 817-500-0155 · www.breshearslaw.com
