Terry Smythe is serving as independent executor of his father’s estate. He has probated the will, filed the inventory and had it approved. Mr. Smythe’s will left all his property to his three children in equal shares. Now Terry is ready to distribute the property to himself and his two siblings. Can Terry rely upon the will alone to establish his and his siblings’ ownership of the real estate in their father’s estate?

Terry cannot rely upon the will alone to transfer the real property in the estate to the beneficiaries of the will. Typically, appraisal districts, title companies and lenders will require that a deed be provided to show transfer of property from a deceased person to the owners inheriting the property.

Terry, as the independent executor, will be the grantor in the deed, which is usually, titled an “Executor’s Deed.” The Letters Testamentary issued to the executor when the will is probated give the executor the authority to make this deed. The executor prepares, executes the deed and files it with the appropriate county deed records.

The authority of the executor is not limited to executing a deed to heirs, but extends to deeding to third-party purchasers as well. Terry and his siblings plan to keep the land. However, should Terry, as executor, have instead sold the land and distributed the proceeds to himself and his siblings, he would have needed to execute a deed to transfer the property to the buyer at the closing of the sale.

Terry will want to make certain that the deed he signs transfers only the property which the decedent owns. For instance, if Terry’s father did not own the mineral rights on the property because they had been retained by the prior owner, the deed will have to reflect that only the surface interest and not the minerals are being conveyed.

Terry does not have a duty as executor to do a title search of the property, but he may want to do so. If his father purchased the property, a title insurance policywas likely purchased to insure the title. If Terry had sold the property to a third party, he should make certain a title policy insures the property. The title company would have done its own title search before issuing the policy, meaning he should be able to rely upon it.  

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.