Asked in Probate for Texas

Q: My mother passed away in Aug 2021 without a will. I have brother from same mother and father, also my stepfather.

My mother had land given to her by her parents with the deed in her name. She was given this this land before she married my stepfather. She lived on property with my stepfather who still lives there, which is fine. I just want to make sure we get done what need be as far as deed transfer and also keep my step father from giving his children ( not my mother's) my mother's things that would now belong to me and my brother.

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2 Lawyer Answers
Isaac Shutt
Isaac Shutt
  • Probate Lawyer
  • Richardson, TX
  • Licensed in Texas

A: You should definitely meet with a lawyer with probate experience. Since your mother received the property by inheritance, it is considered separate property. However, the legal presumption is that all property acquired during a marriage is community property. This distinction impacts the shares that you inherit in that property vs. your stepfather (or his kids). SO, you want to have proper documentation filed.

This could be done one of two ways:

1)File an affidavit of heirship in the real estate records.

2) Do a Determination of Heirship in the probate court.

#2 is better but costs more. Either way, have a lawyer make sure it's done right.

Also, if it's your stepfather's homestead, even if he isn't inheriting any property rights from your mother, he probably will retain the right to reside in the property rent-free as long as he wishes.

1 user found this answer helpful

John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: I agree with Mr Shutts as to the real property.

With respect to your mom’s “things,” as a widower, your stepdad is entitled to your mom’s exempt personal property. That would be things like furniture, furnishings, Knick knacks, etc. The sort of things that would normally be sold in an estate sale.

You should definitely consult your own probate attorney about such things.

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