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Should widow take probate advice from attorney stepson?

Dear Mr. Premack: My husband and I are in our second marriages. He has children from his first wife, and he made a will leaving everything to them. He was in the process of changing the will to leave everything to me when he died rather suddenly in June 2012. His old will still applies, and it names my step-son (who is an attorney in Austin) as Executor. Almost all our finances had right of survivorship to me, so the house is really the only thing available to probate in the estate. His son has not probated the will and I think he is not going to do it. He said if he does not probate it in 7 months, the house will automatically be mine. I just want to be sure I do not need to press the issue of probate so that I don’t lose my house completely. Thank you. – NBJ

As the surviving spouse, you need to determine the extent of your rights in the house. To do so, you must look at the facts to decide whether the house was community property or was separate property (either yours or your husband’s). Separate property is legally defined as a) any item a person owned before the marriage commenced, b) any item a person inherited or received as a gift at any time, or c) any item which has been defined as separate property in a written contract (like a prenuptial contract).

This was a second marriage for both of you, and your husband has a son in the legal profession. It is quite possible that you and your husband signed a prenuptial agreement. The terms of the agreement must be followed. There are three possible conclusions, depending on what actions you and your husband took before or during your marriage:

  1. The house is your separate property because of a-b-or-c above. If so, your husband’s will has no impact on your rights. You own the house already. Probate is not necessary, and his son has no reason to become Executor.

  2. The house is your husband’s separate property because of a-b-or-c above. If so, title passes according to his will (that is, to his children). Regardless, Texas law gives you as surviving spouse special homestead occupancy rights. Even if his children own the house, you have the right to live there until you volunteer to move elsewhere. When you do move, they can sell the house and keep the money.

  3. The house is community property, because the prenup says so, or because there was no prenup and you purchased the house together using community funds like income from work. If so, you own a one-half interest already. Your husband owns the other half, and it passes to his children according to his will. As before, you have special homestead occupancy rights under Texas law.

A will, however, is only effective if it is admitted to probate within four years of the date of his death. If your step-son fails to act in that time frame, your husband is treated as though no will existed. In that case, 1) if the house was community property, then you keep your half and his kids get his half, or 2) if the house was separate property then under Texas law you get a “one-third life estate” and his kids get all other ownership interests in the house. And as always, you have special homestead occupancy rights under Texas law.

Note that I did not say “in 7 months the house will be yours”. Why? Because although your step-son is an attorney, his statement is completely wrong. There is nothing in the intestacy law that sets a seven month limit, and there is no law that would give the house to you under the factual circumstances you presented. If the will is probated, his children get your husband’s share of the house; you just have homestead occupancy rights. If the will is not probated, his children get your husband’s share of the house; you just have homestead occupancy rights and a one-third life estate which expires when you die.

What action should you take? Now that you have this preliminary analysis you should seek personal legal advice from an experienced probate attorney. Don’t rely on advice from your step-son, who may be well intentioned but is poorly informed about this area of the law.

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, October 26, 2012


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