top of page

Land Title is Controlled by Probated Will

Dear Mr. Premack: My father owned his own home for many years, free and clear. He got married for the second time. He did not change the deed to the house, but did name his wife (and her son as alternate) as agents in his durable power of attorney. The power of attorney is recorded with the county clerk’s office. Recently my father died without having a Will filed with the probate court. Does the durable power of attorney give his wife full control of my father’s estate? How is title to his house settled? – SEB

When an unmarried person purchases a house, that house is owned as that person’s sole and separate property. If that person later gets married, the marriage does not change the character of the home. It remains the separate property of the existing owner. However, if the newly married couple resides in the home, the new spouse gains marital homestead occupancy rights.

Your father owned his home, and it was paid in full. It was his separate property. When he married, his wife did not become owner of the house. But she did gain legal occupancy rights, which continue even after his death.

Additionally, your father signed a durable power of attorney naming his new wife as his Agent. Her son was to be the alternate Agent if his wife could not provide assistance to your father. You ask if the power of attorney gives his wife control over the estate. No. By law, durable power of attorney is terminated at the moment its principal dies (or at the moment the agent becomes aware that the principal is deceased). Since his wife is aware of his death, she has no further authority conferred by the durable power of attorney.

You say that your father died without “having a Will filed with the probate court.” I am not clear if your father died intestate (had no Will) or if he had a Will but the Will has not been filed for probate. In the first circumstance, his death invokes the Texas laws of descent and distribution to determine the identity of his heirs. His house would pass to his natural children, subject to his new wife’s right to occupy the house until she voluntarily moves elsewhere. You should seek personal counsel from an experienced probate attorney.

In the second circumstance, his Will controls the identity of his heirs so long as it is admitted to probate within four years after his death. If he did have a Will, it should be filed for probate as soon as possible. The new owner of the house is determined by your father’s instructions in the Will. However, even if he left the house to his natural children via his Will, their ownership rights are subject to his new wife’s right to occupy the house. The person your father named as Executor in the Will should seek personal counsel from an experienced probate attorney.

Dear Mr. Premack: My sister and I are the product of a first marriage. We have a stepmother, two stepbrothers and a half-brother. Do any of the children of the second wife and the second wife herself have any claim to mineral rights and land inherited by my father before his death? He died in 2005, his Will was probated in 2005, but my sister and I were told the only thing included in the probate were assets acquired during the second marriage. – SV

The mineral rights and land your father inherited were his separate property. He had the legal right to dispose of them (via his Will) in any manner he desired. His Will was probated after his death. You ask if his second wife and those children have any claim to the minerals and land. The answer can only be found in his probated Will. No matter what you were told about the Will or think in may say, the facts are on record in his probate.

You should visit the probate clerk in the county where he died. Ask to view the probate file, which includes his Will. If you cannot decipher the Will, have the clerk make a copy for you and seek advice from an experienced probate attorney. Your rights, whether they exist or not, are contained in that Will.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, March 11, 2013


bottom of page