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Inherited property

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lerum

Junior Member
Texas


My mother passed away with a Will leaving everything to me and my two sisters. She was married at the time of her death but did not name him in the will. The Will has been probabted naming my elder sister executor.

She had a house that she had inherited from her parents. We have been told that because of the Texas Homestead Act that her spouse can live in the house indefinately and does not have to pay taxes, insurance, rent, etc. I need to know if, since the house was inherited to her, does that law still take precedence.
 


seniorjudge

Senior Member
If her husband decides to go against the will, here is where the stuff will be distributed:

Texas Intestate Succession Laws

If any part of a Texas decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to depends on these situations:

* If there are surviving children or direct descendants of the decedent, the surviving spouse takes one-third of the personal property in the estate, with the balance going to the children and descendants. The surviving spouse is also entitled to an interest in one-third of the land in the estate for the rest of his or her life (a.k.a., a life estate), with the remainder going to the decedent's children and descendants.
* If there are no children of decedent or their descendants, the surviving spouse is entitled to all the personal property in the estate. The surviving spouse also gets outright ownership of one-half of the decedent's lands. The other half of any lands passes according to the distribution rules below (except that the surviving spouse gets everything if there are no surviving father, mother, or siblings, and their descendants, of decedent).

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes in the following order to:

1. Decedent's children and their descendants.
2. Decedent's parents equally if both survive. If only one parent survives, however, the estate is divided into two equal portions, one of which passes to the surviving parent and the other half passes to the decedent's brothers and sisters and their descendants If no siblings or their descendants exist, the whole estate is inherited by the surviving parent.
3. Decedent's siblings and their descendants.
4. If none of the above are available, then the inheritance is divided into two equal shares ("moieties"), one for decedent's paternal kin and one for decedent's maternal kin, and distributed in the following order:
1. To the grandfather and grandmother in equal portions.
2. If only one of the grandparents is living, then the estate is divided into two equal parts, one of which goes to the survivor and the other goes to the descendants of the deceased grandparent. If there be no such descendants, then the whole estate is inherited by the surviving grandparent.
3. If both grandparents are deceased, then the entire portion goes to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
4. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

3. State of Texas. If there is no taker under any of the above provisions, the intestate estate passes to the state of Texas.

Texas Intestate Succession Law Fun Facts

* Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
* Decedent's children or lineal descendants conceived before decedent's death, but born thereafter, inherit as if they had been born in decedent's lifetime. Other persons, however, have to be alive at the time of decedent's death and be capable in law to take as heirs.
* An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of Texas' intestate succession laws. However, these rules don't apply if the end result is that the state of Texas gets the intestate estate.
* Texas' intestate succession laws, as well as other laws dealing with wills and decedents' estates, can be found in the Texas Probate Code.

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seniorjudge

Senior Member
Texas


My mother passed away with a Will leaving everything to me and my two sisters. She was married at the time of her death but did not name him in the will. The Will has been probabted naming my elder sister executor.

She had a house that she had inherited from her parents. We have been told that because of the Texas Homestead Act that her spouse can live in the house indefinately and does not have to pay taxes, insurance, rent, etc. I need to know if, since the house was inherited to her, does that law still take precedence.
From the extremely brief research on the homestead law, it has nothing to do with your situation.

The land belonged to the old lady; it doesn't make any difference how she got it.
 
Lerum,

Please see a Texas probate lawyer to discuss this issue. You are going to need some professional guidance.

The homestead right in Texas is unique in the country. The Texas constitution provides that a surviving spouse has a right to live on the homestead premises for the remainder of his life without the permission of the deceased spouse's heirs. The surviving spouse is not liable for rent payable to the heirs, but is responsible for the expenses of upkeep of the property.

the fact that it is seperate property does not change the general rule.

This right can be waived by the surviving spouse, but not by the will of the person who died.

After the lifetime of the surviving spouse, the will pass to you and your sisters. The surviving spouse does not acquire an ownership interest in the house - he can't take a loan on it, for example, or sell it, or mortgage it.

The intestate sections posted by another poster are completely irrelevant.
 

lerum

Junior Member
Thanx Pooh,

We do have a probate lawyer and he told us that he could live in the house without having to pay rent, but also that he did not have to pay the taxes or insurance and more or less could do with as he pleases with the property, other than sell, mortgage, etc.

I then sought the advice of another probate attorney who told me that her spouse was liable for taxes, insurance and general upkeep. (as you stated)

My next "what do you do" is this. How are we suppose to make sure that he does the general upkeep, pay taxes, ins., and doesn't make the property worthless.

The closest any of us live is a 7 hour drive. Is there anything legallly we can do to make sure he is held liable if the above mentioned is not met.

Thank you again.
 
Unfortunately, not much. You can check online to make sure the taxes are paid annually, but someone will have to visually check on the house to watch its condition. Did either of your probate lawyers have any ideas?

It is not uncommon in these situations to negotiate a buy out of the spouse's interest, in which the surviving spouse is given a lump sum in exchange for leaving the house. This often works if the surviving spouse can not afford the taxes, insurance, upkeep, etc. and would rather have a lump sum to move somewhere else, into an apartment or assisted living unit, etc.

Of course, all of this depends on your goals - ideally, would you sell property (in which case there are funds for the buyout I mentioned) or did you want the house to remain in the family (which means the funds have to come from somewhere else).
 

lerum

Junior Member
Yes, we have a probate attorney and I have a friend who works for a probate attorney that I have consulted with. However, neither of them mentioned a buy out, which i think could work. He is starting to be a real stinker so any kind of negotiation that would allow us not have to worry about upkeep, ins, taxes, etc. would be wonderful. I will talk to my sisters and see what they think. Thank you very much. You have a lot of insight and ideas and would welcome anything else you might have to offer.
 

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