Texas Inheritance Issues

Gift Deed vs. Lady Bird Deed vs. TODD Deed in Texas: A Quick Guide

by Robert Ray | Last updated Oct 15, 2025 | Heirship, Inheritance, Probate, Property

TL;DR Key Takeaways :

A Lady Bird Deed allows immediate vesting of property to a beneficiary with full control retained by the grantor, while a Transfer on Death Deed (TODD) transfers ownership only after death. Both avoid probate and Medicaid penalties, but the Lady Bird Deed offers more flexibility, including title warranties and power of attorney use.

Lady Bird Deeds vs. Transfer on Death Deeds in Texas: Key Differences and Similarities

I have previously written about Texas Gift Deeds here. You can look at the article to learn about gift deeds. The deeds discussed in this article do the same thing as gift deeds and can give the grantor (the person who gives the deed) more control. The grantor can also change his mind if circumstances change.

In Texas, estate planning often involves choosing tools to transfer property efficiently and with minimal legal complications. Two tools are the Lady Bird Deed (an enhanced life estate deed) and the Transfer on Death Deed (TODD). While both are valuable for avoiding probate and simplifying asset distribution, they differ meaningfully. Let’s break down the similarities and differences to help you understand their unique benefits.

1. Definition and Purpose

Lady Bird Deed: This deed allows the grantor to retain full control over the property during their lifetime while transferring the remainder interest to designated beneficiaries upon death. The grantor can sell, lease, or mortgage the property without the beneficiary’s consent. It is particularly useful for Medicaid planning because it avoids triggering penalties under Medicaid’s five-year look-back rule.
Transfer on Death Deed (TODD): A statutory tool under the Texas Estates Code, the TODD allows property to transfer directly to named beneficiaries upon the grantor’s death without probate. The grantor retains complete control during their lifetime.

2. Vesting of Title

Lady Bird Deed: Title to the property vests immediately in the beneficiary but is subject to divestment. The grantor retains a life estate with enhanced powers, such as revocation and full control over the property.
TODD: Title does not vest in the beneficiary until the grantor’s death, making the transfer contingent upon the grantor’s survival.

3. Medicaid and Creditor Protection

Both deeds offer advantages for Medicaid planning and creditor protection:

Medicaid: Neither deed triggers a Medicaid transfer penalty because the grantor retains control during their lifetime. Additionally, both deeds help avoid Medicaid estate recovery as the property bypasses probate.
Creditors: A TODD is explicitly subject to creditor claims under certain conditions, whereas it is generally more difficult for creditors to claim property transferred via a Lady Bird Deed.

4. Revocability and Amendments

Lady Bird Deed: The grantor can revoke or amend the deed at any time during their lifetime without the grantee’s consent.
TODD: Similarly, a TODD is fully revocable during the grantor’s lifetime. Revocation must be properly recorded to take effect.

5. Formalities and Requirements

Lady Bird Deed: This deed is based on common law and does not require specific statutory language, making it flexible but potentially less familiar to title companies.
TODD: As a statutory deed, the TODD must comply with Texas Estates Code requirements, including proper execution and recording before the grantor’s death.

6. Contingent Beneficiaries

Lady Bird Deed: Typically, contingent beneficiaries are not included in the deed, and the remainder interest may pass according to the primary beneficiary’s estate plan if they predecease the grantor.
TODD: The deed can name alternate beneficiaries, and the anti-lapse provisions allow the property to pass to descendants of a deceased primary beneficiary.

7. Title and Warranty

Lady Bird Deed: Offers flexibility with the option of including warranties of title, which can protect the grantee.
TODD: By statute, a TODD cannot include a warranty of title, which may leave the grantee less protected in disputes over ownership.

8. Effectiveness and Recording

Lady Bird Deed: Becomes effective upon execution and delivery without the need for recording, although recording is recommended.
TODD: Must be recorded during the grantor’s lifetime to be valid.

Choosing the Right Deed

Deciding between a Gift Deed, a Lady Bird Deed, and a TODD depends on the individual’s estate planning goals. A Gift Deed is a gift of the property without control. A Lady Bird Deed may be preferable for those concerned about Medicaid estate recovery or who want to retain enhanced control over their property. Meanwhile, a TODD offers a straightforward statutory solution, particularly for those with simpler estate planning needs.

A 2025 Texas case discussed whether a deed was a gift deed. It found that it was. You can read about it here.

Consulting with an experienced attorney is essential to ensure the chosen tool aligns with your specific circumstances and legal requirements.

Common Disaster Clauses in Wills: Insights from a Texas Legal Battle

by Robert Ray | Last updated Sep 30, 2024 | Inheritance, Inheritance Overview, Probate, Procedure, Property, Spouse, Spouses, Who inherits

Common disasters clauses in Texas wills.

In Texas inheritance cases, the concept of a “common disaster” can significantly impact the distribution of assets. When a married couple makes a will, they often include specific instructions about what should happen to their belongings if they both pass away in a “common disaster.” But what if the circumstances surrounding their deaths are complicated? This is exactly what happened in the tragic case of Vencie and Melba Beard (485 S.W.3d 914 (2016)), and it raises important questions about the law, especially regarding something known as the “slayer statute.”

The Tragic Events

The case of Vencie and Melba Beard illustrates how tragic circumstances can complicate the execution of wills and lead to legal disputes. In a heartbreaking incident, Vencie Beard shot and killed his wife, Melba, before taking his own life. Following their deaths, their wills became a focal point of legal debate. Each will stated that if both spouses died in a “common disaster,” their assets should be distributed to certain individuals. But here’s the twist: Melba died first at 8:59 p.m., and Vencie died later at 10:55 p.m. The case doesn’t explain how this information was known, but it was probably taken from the autopsy report. This timing led to a legal challenge. The “certain individuals” claimed that Melba and Vencie died in a “common disaster” so they would inherit. Other parties did not want “certain individuals” to inherit and claimed that Melba and Vencie did not die in a “common disaster.”

What is a “Common Disaster”?

The term “common disaster” refers to a situation where two or more people die almost simultaneously due to the same event, making it impossible to tell who died first. This concept is important for ensuring that assets are divided according to the deceased’s wishes, even when the order of death is unclear. A Texas statute deals with common disasters when the will does not define a common disaster. See “Required Period of Survival for Devisee” in the Texas Estate Code.

The Legal Dispute

Elaine Stephens, who was in charge of handling the Beards’ estates, filed lawsuits arguing that the couple did not die in a common disaster. The trial court ruled that they did die in a common disaster, stating that the term should apply in this case. However, when the case went to appeal, the court recognized that the deaths did not meet the legal definition of a common disaster because Vencie had clearly survived Melba for a significant time.

The Slayer Statute Explained

Here’s where the Slayer statute comes into play. This legal principle states that if someone kills another person, they cannot inherit from that person’s estate. Essentially, you cannot benefit from your own wrongdoing. In this case, because Vencie shot Melba, he would be barred from inheriting her property under this statute, regardless of how the court interpreted their wills. Texas does not have a Slayer statute, but relatives can take other actions to ensure that the Slayer does not inherit from his wrongdoing. See the article here and here.

The Court’s Decision

Ultimately, the court decided that the Beards did not die in a common disaster because Vencie survived Melba for nearly two hours. This ruling meant that “certain individuals” who would have inherited if the deaths resulted from a common disaster did not inherit.

Why This Matters

The Vencie and Melba Beard case underscores the importance of clear language in wills and the implications of tragic circumstances.

Conclusion

This case serves as a reminder of how important it is to think carefully about estate planning. If you’re drafting a will, consider consulting with a legal professional to ensure your intentions are clear and that your wishes will be honored, even in unfortunate circumstances.

If you have questions about inheritance disputes in Texas, contact us for a consultation.

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Tax Foreclosure in Texas

by Robert Ray | Jan 30, 2022 | Heirship, Inheritance, Inheritance Overview, Procedure, Property

Taxing authorities can foreclose on your real property when you don’t pay your taxes. By statute, an owner may redeem real property purchased at a tax sale by paying certain amounts within a prescribed period of time after the purchaser’s deed is recorded. What does a tax foreclosure in Texas have to do with an inheritance? Read on and find out.

Inheritance and foreclosure

Let’s say an elderly relative doesn’t keep up with their bills. Tax payments can be missed or forgotten. A relative may need to be put in a nursing home, and while there, no one pays the taxes. The relatives may not know that a tax foreclosure happens in each situation. This can happen even with a property that is the person’s homestead. Depending on the facts, the heirs of the deceased relative may be able to redeem the property after the death of the decedent.

A situation like the above happened when an elderly man could not care for himself. 593sw3d167. His mother-in-law, Barton, asked her daughter, Karen, to quit her job to take care of him. When the man died, Karen was appointed administrator of his estate. Before he died, several taxing authorities foreclosed on his three-acre tract valued at $217,00 and, after his death, sold it at a foreclosure sale for $68,000. The land was the only asset of his estate.

Karen died shortly after the man, and Barton was appointed successor administrator of his estate. She then began the process of redeeming the property back into the estate. Barton was successful in redeeming the property.

Takeaway

The takeaway from this post is that a tax foreclosure in Texas is not as final as one might think. If you meet the criteria set out in the statute, you may be able to redeem the property after it is sold even if you are not the original owner and may only be an heir.

WHAT HAPPENS WHEN A TEXAS WILL DOESN’T DISPOSE OF ALL THE PROPERTY

by Robert Ray | Last updated Dec 16, 2020 | Inheritance Overview, Property, Who inherits

Property not disposed of by will

A will must dispose of all property in all circumstances. If it doesn’t, the the laws of descent and distribution will determine who gets the property.

When a person executes a will, the intention is that all of the property will be disposed of. Sometimes that doesn’t happen.

In a 2019 case, 07-17-00296-CV, the testator made a will. In the will he left his half of the community to his wife as a life estate. When the wife died, he made three contingent provisions for the property to go different ways depending on the contingencies. None of the contingencies occurred.

Since none of the contingencies occurred and the will only made a disposition of the property based on those contingencies, it was determined that he died intestate as to that property after the life tenant (his wife) died.

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

by Robert Ray | Last updated Dec 16, 2020 | Children, DNA, Inheritance Overview, Others, Property, Time limits

Background

Heirship proceeding are different from will contest.

This article deals with getting property that is yours based on an inheritance. This may occur where a person dies without a will. It can also occur where there is a will but the will leaves property to the decedent’s “children” or his “heirs” or something similar without identifying the children or heirs by name. It may occur when there is a will but someone has taken your inheritance without your knowledge or when you didn’t know about your inheritance. This is different from a will contest where you are trying to prove your inheritance.

Let us say an heir finds out that a relative died some years back and that they may have some inheritance rights. What can they do? Is the statute of limitations a problem?

This situation may arise because a child was unborn or was an infant when the facts occurred. It may be that the child is illegitimate or only recently learned through DNA who their relatives were. It can also arise when other heirs, not just children, discover their potential inheritance.

There is currently no statute of limitation on heirship proceedings if the decedent died after January 1, 2014. If the decedent died before that date, there may or may not be a limitation problem depending on the circumstances. This is complicated, involving heirship proceedings (trial brief), but there is a possibility that it can be done.

Don’t get this limitation period confused with the two-year limitation period for contesting a will. This article deals with heirship and not with contesting wills. And if the facts are in your favor and the case is properly handled the limitation of those dying before January 1, 2014 may be avoided. In a recent case, the decedent died in 1972. Her heirs didn’t file any proceedings until 2013 when they filed a suit to get their inheritance. The statute of limitations was not a problem because of the facts and how the case was handled.

The slayer rule doesn’t always apply

by Robert Ray | Last updated Apr 14, 2025 | Probate, Property

Texas Slayer Rule

Recent UK case on the Slayer Rule

The Texas Slayer Rule differs from other states’ and countries’ rules but has procedures to accomplish the same end result. See this discussion. The Texas Slayer Rule is a rule that courts use to prevent a murderer from inheriting from the person he killed.

Occasionally, you can look at other states’ and countries’ cases to gather information that may help with a Texas case. In England, a woman killed her husband and was sent to prison. She also lost her inheritance. She appealed, and the appellate court found that she was a wife who had been abused by her husband, which led to the murder. The judge said the facts were so bad that a waiver of the Slayer Statute was in order.

“I emphasise that the facts of this terrible case are so extraordinary, with such a fatal combination of conditions and events, that I would not expect them easily to be replicated in any other.”

If a Texas case included such a “fatal combination” being so “extraordinary,” it is maybe unlikely that a similar case could arise, but if a battered spouse murders the abusing spouse, the Texas courts may consider those facts. A link to the article is here:

Abused Wife Can Inherit Killed Husband’s Estate

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