This column first appeared in the San Antonio Express News on September 23, 2016.
Dear Mr. Premack: This week I received a letter from the Bexar Appraisal District. It looks like a form letter that went out to lots of people, and says I need to reapply for my homestead and over-65 exemptions or I will lose them. It also tells me that if an owner shown on the District’s list is no longer living, I must provide a copy of the death certificate and probated Will or an Affidavit of Heirship. My husband died two years ago and I don’t have any of those things, and am not even sure what they are. What should I do at this point? – S.D.
When a person dies, the property they own must pass to someone else. Texas law identifies the legal methods that document the change of ownership. The most traditional approach is for that person to identify their own heirs in a Will. But before a Will is recognized as effective, it must be reviewed and accepted by a Judge. That process is called probate.
There are other methods for passing title. If the person died intestate (without a Will or other binding plan) then Texas law identifies the categories of individuals who may be heirs. Actual people’s names can be attached to those categories in three ways: 1) a court-based “Determination of Heirship”, 2) a court-based “Small Estate Affidavit”, or 3) an out-of-court Affidavit of Heirship. Each method has its own niche, limits, restrictions and uses.
Additionally, the deceased person may have made other non-probate arrangements to pass title. For instance: 1) between spouses there may be a written Community Property Survivorship Agreement, 2) there may be a revocable Living Trust that is listed as owner, or 3) there may be a Transfer on Death Deed, Lady Bird Deed or a Life Estate Deed.
This is why people need to consult with experienced Estate and Elder Law Attorneys. Each of the options has various good and bad points, and no one approach is right for everyone. The Attorney can listen to your goals, assess your situation, and recommend the best approach. Remember also that these are steps you would be required to take before being able to sell the house, so this prompting from the Appraisal District is forcing you to take actions you should already be taking to protect yourself.
The Appraisal District’s letter did not discuss all the transfer options, but they still exist and are legally acceptable. So what should you do now to renew your exemptions even though your husband died two years ago?
If the two of you had any of the non-probate arrangements, provide a copy of the recorded documentation to the Appraisal District. If those do not exist, the next question is “did your husband leave a Will?”. If yes, then consult with an experienced Probate Attorney. Wills need to be admitted to probate before four years have elapsed from the date of death, so act promptly. If no, then consult with the Probate Attorney to determine if you should use another court-based procedure to be recognized as your husband’s heir, or whether you should settle for the out-of-court (but less reliable) Affidavit of Heirship document.
Also note that a surviving spouse may only receive the over-65 exemption if the deceased spouse was 65+ and the surviving spouse is at least 55 years old. If the survivor is younger, the exemption will be lost.