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Can a quit claim deed be signed if the will has not probate

Posted on: 13th Dec, 2006 02:37 pm
my brother passed away two years ago and his will has not gone through probate. can his adult children sign a quitclaim deed so that thier mother can refinance her home? the home is in texas. thanks diane
Hi Diane,

Sorry to hear about the death of your brother.

If the property does not go through the probate process then any mortgage lender will not agree to refinance the mortgage. As a probate proceeding clears the title to the property.
Posted on: 13th Dec, 2006 02:55 pm

If the will does not state any kind of property to be given to any other person and only general assets will pass through the will then a probate is not required.

But even then the will should be filed with the probate court.
Posted on: 13th Dec, 2006 03:01 pm
Probate will not be required in case your brother's entire estate's value was not more than $100,000.

In that case the property passes to the successors by an affidavit or declaration, which is also called small estate affidavit.

If your brother's estate was less than the specified amount of $100,000 and passed on to his children by way of affidavit then they would be able to quit claim it to their mother and she would be able to get it refinanced in her name.

Posted on: 13th Dec, 2006 04:08 pm

The property cannot be quit claimed until and unless the estate is properly distributed among others after your brother's death. So, for that, either the Will should go through probate under certain circumstances or the law of intestate succession will follow. By this law, the court will distribute the property to others and then only the quit claim can be done.


Posted on: 13th Dec, 2006 08:41 pm
Although it is not mandatory to probate a Will, it is always better to check with an attorney before deciding not to go for a probate. You may not be aware of the legal issues involved, which may also require a probate of the Will.
Posted on: 14th Dec, 2006 06:19 am
hi sbrazman,

a small estate in texas is required if there is no will being offered for any probate action. moreover, the value of the estate assets (excluding homestead and exempt property) does not become higher than $50,000. a small estate affidavit can be done only after 30 days have passed since the deceased person's death.

in your situation, i feel that you should contact an attorney regarding the probate and let the property be distributed among the heirs. if your brother's children get their share of interest in the property, they can sign a quit claim deed so thet their mother can refinance.


Posted on: 14th Dec, 2006 06:44 am
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