Real Estate distribution in TEXAS

[whugi02]

My stepfather died about 2 years ago. His will was written about 8 years before his death. In the will he left to my Mom the homestead and another property that they both owned at the time. It also directed all remaining tangible personal property to my Mom. Before his death, those properties were eventually sold and my Mom and stepdad moved to another house. They had been there for approximatley 5 years. The mortgage was in his name and I believe the deed was in both of their names. When he died, he had not updated his will to show the new address of the new house going to my Mom.

My issues are that my ex-step sibilings (and the estate attorney for that matter) believe that the owners of the house are his chirldren and my Mother has only Homestead rights (meaning she can live there but the house will be theirs when she leaves).

I believe that the last clause shows that the property should go to my mother. I realize that the term "Personal" property is used. However, the homes that were being lived in at the time of the will being written were willed to my Mom. I am not sure how Texas law would treat this if challenged in court. The sibiling more than likley would fight it so I need to get my facts straight before I approach this subject.

Any and all advice would be much appreciated!!!

 

[lwpat]

You need to start with how the house is titled. If it is in both names, it may be with right of survivorship which means she gets it all. However, this requires special wording so I doubt this is how it is listed.

She can still claim half as community property since it was acquired during the marriage and TX is a community property state.

As to probate, she should file with the court to be named as the personal representative unless the will names someone else. It appears that they are either claiming the house was his separate property or that it was not disposed of by the will and goes into the residual. The will controls how the residual of the estate is distributed. It cannot be separate property since it was acquired during the marriage so that argument will fail.

Your mother can claim the house under the doctrine of "acts of independent significance." Since she was to get the marital home in the will, it does not matter that they purchased a new marital home. The estate attorney is treading a very fine line if he is saying she is only entitled to a homestead. Ask him to give you that in writing citing the authority for his position. You need to consult another attorney.