Diana, TX asked in Real Estate Law and Probate for Texas

Q: My Mother passed away with no Will. She and my Dad were both on the mortgage for their home. My Dad is selling the home.

Realtor said my siblings and I are considered having ownership in the home so all must sign to sell the house. Is this correct? If so, does that mean we also have to pay tax on the sale? We are not receiving the proceeds, only my Dad.

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1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: When your mom died without a will, part of her estate including the home passed to you and your siblings.

In the current market, you {may} have to pay capital gains tax on your share of a portion of the proceeds. You do not have to pay capital gains tax on the value of the home as of the date of your mom's death. You only potentially will need to pay capital gains tax on any increase in the value of the home since the date of your mom's death.

You and your siblings may want to consider signing gift deeds conveying your interest to your dad. It is unlikely that any increase in value since your mom's death would exceed the gift tax exemption. If your dad lived in the home with your mom, he likely is entitled to an exception from the capital gains tax.

I'm surprised the title company isn't requiring you to probate your mom's estate.

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