This answer first appeared in the San Antonio Express News on March 30, 2018.
Dear Mr. Premack: My mom and dad both had Wills, leaving their home to all ten children. My mom died in 2015 and my dad died in 2017. Both were on Medicaid and MERP had a claim against the property by the time may dad passed away. We submitted all required paperwork to claim an exemption due to my brother's disability. MERP withdraw the claim based on the exemption. We know that we should Probate dad’s Will to be able to sell the house and distribute the proceeds accordingly to all brothers and sisters. My disabled brother says that we kept the house because of him and that it cannot be sold based on a possible lien by MERP. He wants to keep the house and live in it until he dies. Can we sell the house based on the outcome of Probate and remove my brother from the house? He moved into my parents’ home a few months before my dad passed away. – HT
Your father died with a Will. The Will should, if properly written, nominate an Executor to handle the estate. The Will should, if properly written, allow the Executor discretion to sell any real estate so long as the net proceeds are used to fulfill the terms of the Will. The Executor is not restricted by MERP, since MERP has dropped its claim against the estate. MERP does not file any type of lien and is not authorized by law to file any type of lien on the house. Your brother’s disability provided grounds to eliminate the MERP claim but did not give your brother an ongoing special right to continue to occupy the house.
Consequently, the nominated Executor should hire an attorney to probate the Will. The Executor will have the right to sell the house and have the right to evict the disabled brother. Obviously, the Executor will want to handle this as gently as possible. Once your disabled brother understands that he does not have special rights, he and the Executor can look for alternatives. Perhaps he can rent the house from the estate for a period of time long enough to make other housing arrangements. Perhaps he has the financial ability to buy the house from the estate and receive credit for the 1/10th share which he is inheriting.
Dear Mr. Premack: I read with interest the article [March 23, 2018] about the lady who thought changing records at the Appraisal office would make her sole owner or her property. I did the same and I was thinking the same thing. My husband passed away six years ago without a Will. I have an Affidavit of Heirship filed with the Bexar County Real Estate Records. What does this Affidavit do for me? Do I still have to change the records with the County Clerk’s Office, do I have to probate, or is this only if I decide to sell my home? Thank you for your help – LH
Since your husband died without a Will, the filed Affidavit of Heirship would have invoked the provisions of the Texas Estates Code about passage of title. If the house was community property, and if you are the mother of all your husband’s children, then you received title under the intestacy laws which makes using an Affidavit of Heirship appropriate under your circumstances. When you hired an attorney to prepare the Affidavit of Heirship and filed it with the County Clerk’s office, you did change the real property records. If the Affidavit of Heirship was properly prepared, signed, and recorded it acts as evidence of the legal transfer of title to you without the need to go to probate court.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.