Dear Mr. Premack: My grandfather got married, and then passed away only two months later. His Will left the house to my dad and his brother. We know his new wife can stay in the house as long as she wants, but she owns two other houses and one of them is homesteaded. If she lives in grandfather’s house, what expenses must she pay? Is she responsible for the taxes? If she does not pay the taxes when due, what are we to do? – LW
It is generally true that a surviving spouse is entitled to reside in the marital homestead, even if the children inherit ownership of the house. In this situation, with a two-month marriage and with the wife maintaining another homestead, your father and uncle may be able to argue that your grandfather’s house never became her place of residence. If that is true, then she does not have the right to live in his house under the Texas homestead law.
If they do not want to push that point (in your letter you are willing to concede her right to live in his house) then they want to know what expenses she must pay. Under various Texas statutes and court cases, the expenses are split as follows:
The Mortgage: the surviving spouse makes the interest payment and the new owners (your father and uncle) must pay the principal due with each monthly payment.
The Homeowner’s Insurance: the new owners pay to insure the structure in case of fire or other casualty. On the other hand, she should buy insurance to cover any personal possessions that she owns.
Upkeep & Maintenance: the surviving spouse has a duty to prevent waste and decay of the property; therefore she pays for routine upkeep and maintenance. But any “capital” improvement or repairs – like replacing the roof or putting in a new furnace – must be paid by the new owners.
Property Tax: the surviving spouse pays the annual property taxes. If she fails to do so, then the new owners have a difficult decision to make: do they pay the taxes just to avoid legal action by the government, or do they let the house go into a tax collection suit with possible loss of the premises? It is possible for them to pay, but then to demand that she repay them (and to sue her if she fails to meet her obligation).
All of those expenses are negotiable between the parties. If they agree in writing to handle the payments differently, the terms of their agreement will rule.
Also, remember that the words “his Will left the house to my dad and his brother” require that they offer the Will for probate in the county in which your grandfather resided. When I assist a client with a probate, we seek Judicial review of the Will so it can be admitted to probate. Only then can your father and uncle be legally recognized as the owners. If they fail to probate the Will, then under the laws of intestacy your grandfather’s wife of two months inherits an interest in the house.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, January 28, 2011