Updated: Jan 6, 2022
This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 4, 2019.
Dear Mr. Premack: My father died in early 2017 with no will, leaving a house and a commercial property (his second wife gets 1/2, my sisters and I split the rest.) My stepmother and her attorney are not responding to my correspondence, and she seems to just be planning to not pay me for my share. They gave me conflicting stories, first that she planned to buy me out, then that the properties are badly damaged by flood and require more work than they're worth and are uninsured. But she’s been living in the house all along, so this story sounds suspect. The properties are in Texas, but I live in Oregon. How can I file a claim for my inheritance or otherwise place a lien on the properties? Can my stepmother be compelled to either sell the properties or refinance and pay me my share? I would greatly appreciate any information you could provide. - DG
Your claim is based on the Texas statute which defines ownership of assets after the owner dies without leaving a Will – the law of intestacy. Usually, the husband’s assets legally go to his wife. However, when there are children from a prior marriage, ownership is split much as you described in your letter.
Ownership is not, however, a matter of public record until action is taken to make it so. Since your stepmother hired a lawyer, I will assume that lawyer went through the proper court procedures for a Determination of Heirship (to declare who owns which portion). Thus, your first task to protect your interest is to obtain a copy of the Court Order in which the Judge ruled that you indeed own a share of the real estate.
Your letter discusses two properties: 1) the homestead, and 2) a commercial property. Under Texas law, these two categories are handled differently. The homestead may have belonged to your father entirely as his separate property, but when he married his second wife and they made it their marital homestead, she obtained a statutory and constitutional occupancy right in the homestead.
Even if the Court Order states that you own a portion of the homestead, you have no legal authority to interfere with her occupancy and enjoyment of the home. You cannot force a sale, you cannot get your share, and you cannot get any money from her. In fact, as a partial owner, you are liable for your share of the taxes and of the insurance on the property – and if there is a mortgage, you are liable for your share of the principal payment (but not the interest). When she volunteers to move out or to sell, then you can exercise control over your share of the homestead.
The other real estate is a commercial property, definitely not homestead. Once you get the Court Order which establishes your share of ownership, you can hire legal counsel in Texas to exercise your rights under the Uniform Partition of Heirs Property Act (UPHPA). This law has been on the books since 2017 and tries to bring better outcomes by creating a process for sale of co-owned property. You start by negotiations with your stepmother, and hopefully come to an agreement where she buys your share or agrees to sell the property so you get the value of your share.
Sometimes property can be partitioned – divided into equitable shares – like a large tract of farm or ranch land. Sometimes is cannot be partitioned – like a warehouse or office building – so it must be sold to accomplish the division.
If you file suit, the court will determine the fair market value of the property with input from an impartial third-party appraisal (unless the parties stipulate to an agreed valuation). If the property can be partitioned, any co-owner can offer to buy-out the others. If the property must be sold, any co-owner (except for the one who filed the lawsuit) can offer to buy-out the others. If agreement is reached, the goal is accomplished. If the parties cannot agree, the court will Order the division or sale of the property.
Your father could have solved a lot of these issues with proper proactive estate planning. He cannot fix that oversight, but other readers can learn from his example. Avoid these issues for your family by meeting with your estate planning attorney now.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.