Dear Mr. Premack: My grandfather died nearly 6 months ago without leaving a will. His children are up in arms about who owns his home on half an acre. Some want to sell, some want to leave as is, but all refuse to pay property taxes until ownership is established. How does the state or taxing entity decide who the rightful owners are, and how can this be sorted out? – AA
Texas intestacy law provides a process to determine the identity of the new owners when a person, like your grandfather, neglects to make a Will. The tax authority does not get involved in that process, but adheres to the result produced by the legal process. If all your grandfather left was the house (which was his homestead) any one of his children can hire a certified attorney to prepare a “small estate affidavit”.
The attorney must gather information on your grandfather’s family history, the identity of his heirs-at-law, and his debts (if any). The affidavit will contain that information, and must be signed under oath by two people who personally know the facts but who are not heirs to the estate. It is filed with the probate clerk, along with a proposed Order approving the affidavit. A probate judge reviews the information, and if it is all complete and proper, signs the Order which confirms the listed heirs as the new property co-owners.
A certified copy of the Affidavit and Order would be recorded in the real property records at the courthouse, and would be presented to the appraisal district. The district would then list the co-owners identified in the Affidavit on the tax account. It is the responsibility of those co-owners to pay the property taxes when due.
If your grandfather’s children fail to take legal action to clarify who owns the property, the taxing authority will eventually file suit to collect the taxes. There will be issues over who should be named in the collection suit (which a court will have to address) but eventually when the issues are clarified, the taxes must be paid or the authority can foreclose on the house and land for back taxes. It is in the best interest of your grandfather’s children to take action before collection action is started by the authority.
Your grandfather could have avoided all of these issues by selecting one person to handle his affairs after his demise. In a Will, he could have nominated an Executor (even you, his grandchild) who would get court permission to administer the estate. The Executor would keep the taxes current. The Executor would follow your grandfather’s instructions and either 1) sell the house, dividing the proceeds among his heirs, or 2) distribute ownership to the heirs he selected in his Will.
Your grandfather probably worked very hard for many years to pay his mortgage and maintain his home. The cost of a Will would have been minimal, probably less than the cost of one payment on his mortgage (and he likely made about 360 payments on his mortgage). The fact that he died without a Will is just irresponsible, and has thrown his family into disarray.
Don’t let this happen to your own family. Preparing a Will is not a bad omen. Rather, it is a loving and responsible act that protects your family and protects the assets you worked so hard to afford. If you have been responsible and already have a Will (good job!) then review it now. Has your family changed? Do you have any new grandchildren or great-grandchildren who you want to include? Talk to your lawyer to ensure your Will reflects your current wishes based on the composition of your family today (not as it was a decade ago when you signed the Will).
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, July 29, 2011