Gift Deeds in Texas
Gift deeds in Texas are valid, but there are requirements above and beyond those of a regular deed. A gift deed is a document that transfers title to land. It can be informal, but the grantor’s intent must be to immediately divest himself of the property where he no longer has control over the land.
Gift Deed Validity?
A gift deed must be (1) in writing, (2) signed, (3) describe the property, and (4) delivered. TPC §5.021.
Texas further requires the document set forth (1) the intent of the grantor, (2) the delivery of the property to the grantee, and (3) the gift to be accepted by the grantee. The one claiming the gift bears the burden of establishing each of the elements. The owner must release all dominion and control over the property. Delivery is required, but it need not be actual or immediate. There is a valid constructive delivery if the grantor intended for the title to pass immediately upon execution and acknowledgment.
What you should know
You should be familiar with Texas inheritance laws, which you can review here.
You also might want to know what types of property are involved in probate, which you can see here.
Gift deeds in Texas are valid; however, there are strict requirements for gift deeds in Texas. Therefore, if you have a document that might be a gift deed or if someone is claiming they have a gift deed to a property that should be yours, you should contact an attorney as soon as possible.
In a 2022 case, the issue of gift deeds was raised concerning some oil & gas deeds. 11-20-00080-CV. If the deeds were a gift, then one party would own them. If they were not gifts, another party would own them. The case involves multiple parties, old deeds, and people dying childless and without wills. When the people died childless and without wills, the mineral interest would go to their spouse and her heirs if the deed was not a gift deed. On the other hand, if they were gift deeds, then they would go to the husband’s heirs. The court looked at the deeds and because they said they were sold for $10.00 and other good and valuable consideration, they were not gift deeds.
In a 2021 case, the court of appeals held that a gift deed, signed, acknowledged, and filed in the deed records, carries a presumption that the grantor intended to transfer the real property. However, this presumption may be overturned where there is proof that the recording of the instrument was for some other purpose or through fraud, accident, or mistake. 13-19-00484-CV. The court gave a thorough review of gift deeds and what is required.
The 2018 case 04-17-00132-CV highlighted another problem with gift deeds in Texas. A gift deed is the separate property of the person to whom the deed was given. The deed will usually recite the consideration as “love and affection.” A non-gift deed will usually recite the consideration as “$10 and other good and valuable consideration” and would be classified as community property.” In this case, the deed was from family members to other family members but it recited the consideration as “for and in consideration of the sum of Ten and no/100 ($10.00) Dollars.” A party to the suit who was the beneficiary of the separate property of one of the grantees claimed that the deeds were actually gift deeds instead of deeds being purchased. She even had one of the family members who was one of the grantors testify that they were gift deeds not purchased deeds. If they were gift deeds, she would inherit the land. If they were purchased deeds, she would not inherit the land. The court ruled that because the deeds were not ambiguous and recited that they were sold for $10, no testimony would be allowed which would contradict what the deed said. So, they were not gift deeds.
In another 2021 case, a father died and left all his property in Van Zandt County to his son. The gift to the son was the son’s separate property, not community property. Later, but before the son received a deed from the executor of his father’s estate, he gave a gift deed of the property to his niece. When the son died, his wife was appointed executor of the son’s estate. The wife then filed suit to cancel the gift deed because the son had never received a deed. The court disagreed and upheld the gift deed. The reasoning the court gave was “(a)ll property that is devised by a will vest immediately in the devisees upon the death of the testator.” So the son owned the property immediately after his father’s death as separate property and could sell or give it away. 12-20-00125-CV.
In 2016, the San Antonio court of appeals was asked to decide if a document was a gift deed. The document was titled “March 11, 2005, Will” of two people who owned the property in question and was signed by them. The document said “we agree that the house be evenly owned by” the grandchildren. The court ruled that the key issue turned on the donor’s intent when the document was executed. A gift is a voluntary transfer of property to another made gratuitously and without consideration. Establishing donative intent requires “evidence that the donor intended an immediate and unconditional divestiture of his or her ownership interests and an immediate and unconditional vesting of such interests in the donee.” Until the donor has absolutely and irrevocably divested herself of the title, dominion, and control of the subject of the gift, she has the power to revoke the gift. Here, the conveyance in the “March 11, 2005, Will” lacks present donative intent. The document provides “[w]e agree that the house be evenly owned by (grandchildren)” and the document’s title as a will clearly implies the donor’s intent to transfer ownership of the property to the (grandchildren) upon the testators’ deaths. The transfer did not provide for an immediate and unconditional divestment of the donors’ interests. By its very nature, the “March 11, 2005, Will” does not “absolutely and irrevocably divest” the owners of “title, dominion, and control of” the property. The court reversed the trial court, which ruled that the document was a gift deed. 04-14-00609-CV.
So, gift deeds in Texas are valid if they meet the requirements of a gift deed, as shown above.