Mckinney, TX asked in Estate Planning for Texas

Q: My husband cosigned a home loan for his mom, since then she has paid it off. Does he have ownership after she passes?

She has a will stating her properties be divided among her children, does that mean the house as well? He is executor and has power of attorney.

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3 Lawyer Answers
Kristin Kim Kline
Kristin Kim Kline
Answered
  • Estate Planning Lawyer
  • Houston, TX
  • Licensed in Texas

A: Financing a home and owning a home are not the same thing. If the Will states all property is to be divided, it should be divided. Did she put him on the deed or just the financing?

Kenneth V Zichi agrees with this answer

Ben F Meek III
Ben F Meek III
PREMIUM
Answered
  • Estate Planning Lawyer
  • Oklahoma City, OK

A: There is not enough information to tell you what will happen to the home. Cosigning the note with your mom would not by itself have given him an ownership interest in the home. He would merely be obligated on the debt. If, on the other hand, he is on the Deed to the home as a co-owner, he then would remain at least a co-owner after her death. If he and his mom owned the house as "joint tenants with right of survivorship", then he becomes the sole owner of the house after she dies (assuming there are no other joint tenants). If the house is owned in joint tenancy, it will pass to the surviving owners outside of probate -- meaning her will will not affect its disposition. If the house is owned in a co-tenancy or tenancy-in-common, his mom's interest in the home will become part of her probate estate and her interest will pass according to the terms of her will (assuming it is valid, etc.) or by the state's laws of intestate succession. The power of attorney is only effective while his mother is alive -- it terminates upon her death. Being an Executor only means he will be responsible for administering his mother's probate estate but may or may not inherit anything. He will receive part of her estate only if he is either an heir or a devisee under her will.

If he and his mom wish to avoid probate when she dies, they should consult an estate planning attorney. He will examine the Deed, ask a lot of questions, and then can advise on next steps. If your husband is the attorney-in-fact under his mom's Durable Power of Attorney, he might even be able to re-title the property. But he should only do so after consulting an attorney, because if he doesn't get it right, he could breach his fiduciary duty under the DPOA and get into a world of hurt.

Many attorneys offer free initial consultations. Your husband and/or his mother should contact one or more. Good luck to you.

PS: My comments here are offered for general information only and not as legal advice on your specific legal issue nor an opinion on the applicability of any particular law. They are not offered as an invitation to join in, nor intended to create, nor do they create, an attorney-client relationship.

Kenneth V Zichi agrees with this answer

Terry Lynn Garrett
Terry Lynn Garrett
PREMIUM
Answered
  • Estate Planning Lawyer
  • Austin, TX
  • Licensed in Texas

A: Is your husband named on the deed as joint owner with right of survivorship? Is there a transfer on death deed or a "Lady Bird" deed (general warranty deed reserving an extended life estate)? If not, the Will governs.

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