Mansfield, TX asked in Estate Planning and Probate for Texas

Q: What can be done to get the deed of the house to be in the husband's name after wife dies? There is no Will.

A woman died, leaving 2 children from past husbands. The location of one of them is known but not the other. Both are adults. She was married to her fifth husband when she died. Her name and his (#5) are on the deed to the house. I believe that Husband gets his half of the house (community property) and half of her half. The remaining fourth goes to the two children, 12-1/2% of the home to each. Will publication suffice for locating the missing child (grown)? Will an Affidavit of Heirship suffice after publication to transfer the house to the Husband and one child? Or does there have to be a proceeding to determine heirship? He knows who they are already. Would a Small Estate Affidavit be better? Then when there is a deed with the Child's name and Husband's, can he just buy out Child's share? (presuming Child is willing, which he likely will be. But how is a price determined?) He can't afford much legal assistance but doesn't qualify for Legal Aid either. Thank you.

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1 Lawyer Answer
Kathy Elizabeth Roux
Kathy Elizabeth Roux
Answered
  • Estate Planning Lawyer
  • Grapevine, TX
  • Licensed in Texas

A: Assuming that the house was the community property of Husband and Wife, then Husband retains his 1/2 undivided interest in the house. The Wife's 2 adult children inherit the Wife's undivided 1/2 interest in the house.

If you file an application to determine heirship, since the Wife died without a will, and one of the Wife's adult children's whereabouts is unknown, service of citation by publication is required. You may also need an administration of the estate in order to transfer title to the house. An application to determine heirship is a court proceeding.

An affidavit of heirship is an out of court proceeding and does not require service of citation by publication. Generally, affidavits of heirship are filed in the land records in the county where the house is located to transfer title to the house. They must be on file for 5 years in order to transfer title.

Depending on the facts of your case, you may be able to file a Small Estate Affidavit proceeding, which is a court proceeding. Once you get a court order approving the affidavit, then you may file it in the land records in the county where the house is located to transfer title to the house.

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