This column first appeared in the San Antonio Express News on September 25, 2017.
There are a few things that you can say in your Will, but you have a more pressing legal issue you have not even recognized. When your first husband died, he was owner of a one-half community property interest in that house. His Will may have said it would pass to you, but you never probated the Will. Consequently, under Texas law, his estate is treated as though he died intestate (did not have a Will).
Under current law, when a spouse dies intestate community property goes to the surviving spouse (so long as all legal processes are properly followed after the death). But in the late 1980’s the law was different. Under the law which applied when your first husband died, his half share in the house passed to the children, not to you. Hence, you own half of your house and your children own the other half. If you tried to sell the house, a title company would reject the sale without your children’s joinder.
It is still possible, under Texas law, for you to file his Will for probate as a Muniment of Title so long as 1) the delay was not due to a legal “default” on your part, and 2) the heirs are all notified in advance and have a chance to object. Title to half of the house has been legally vested in the children since their father died, and probate of her Will would remove that ownership interest. Hence, they must be served with notice giving them the chance to object, or must sign an affidavit recognizing the situation and giving consent.
A similar case was decided this year (Byerley v. McCulley) in which the surviving spouse offered the Will for probate as a Muniment of Title nineteen years after his first wife died. His lawyer had advised that there was no need to notify the intestate heirs because the law that existed nineteen years ago did not require personal notice. The local court agreed, found that the surviving husband was not in default, and admitted the Will to probate.
The children appealed, arguing that the court should have applied the law as it stood when the Will was filed for probate, not as it stood when their mother died nineteen years ago. The appeals court reviewed the legislature’s intentions. It found that when the law regarding notice was changed in 1999, the legislature retained the old law for anyone who died before 1999 (called a “savings clause”). Hence, the father’s lawyer and the trial court decided that personal notice was not necessary.
However, the appeals court took the analysis one step farther. They noted that when the same law was changed again in 2014 the legislature did not use a savings clause like they had in 1999. Because of this second change to the law without a savings clause, the appeals court decided that any new probate after 2014 must provide personal notice to all of the intestate heirs, regardless of what year the Decedent died.
So, if you want to probate the Will as a Muniment of Title, your attorney must have your children served with personal notice. If they object, the court can refuse to admit the Will to probate, leaving you as owner of only a half interest in the house to leave to your second husband. He will not be sole owner of the house but it would be his marital homestead (see various columns in my archives for more details).
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.