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How do I get the house when my husband died without a Will?

Dear Mr. Premack: My husband passed away in late 2008. The deed of the house only has his name on it. He had no Will and nothing went thru probate. How do I change the deed into my name? – PM

He died intestate, so Texas law determines the identity of his heirs. If he dies without a Will, then under Texas law as his widow you only get the house if he had no children or if all his children are also your children. If he has any children from a prior marriage, then they (not you) inherit his share of the house.

Whether you get title or not, you have legal homestead occupancy rights that cannot be taken away from you. You may live in the house even if you do not own the house. Of course, that raises issues of who pays for the insurance, taxes, upkeep, etc., so you are best to get the title issue resolved.

If you are the sole legal heir, the deed can be changed in one of three ways:

1) If he has no debts except perhaps the mortgage, and the total value of his assets (not including the value of the house) is below $75,000 then you can use a “small estate affidavit”.

2) If he has unpaid debts and/or an estate larger than $75,000 (not including the value of the house) then you can still file to become administrator of his estate in the probate court.

3) You could file an affidavit of heirship with the county clerk if you are willing to risk someone challenging your ownership at some future date.

Work with an experienced probate attorney to select the correct approach under your circumstances.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, January 21, 2011


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