Conroe, TX asked in Probate for Texas

Q: What happens to the house when a spouse passes away without a will and their joint children and stepchildren involved?

Husband and Wife marry and have a son, they divorce and both remarry and each have children. Then they get back together and remarry.

Then the Wife dies without a Will. What happens to the home and other property involved

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1 Lawyer Answer
Melissa O'Neal
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  • Probate Lawyer
  • Angleton, TX
  • Licensed in Texas

A: If the wife did not have a will and the property is community property, the spouse has a life estate interest in the home and owns half of it. His community property half. The other half is owned by the biological or adopted children of the wife in equal parts. The husband should not be able to sell the property without all the children's signing off and receiving half of the proceeds.

But if the husband chooses to continue to live on the property he is responsible for maintaining the property and paying taxes and keeping insurance on the property. He is responsible to protect the beneficiaries (children's) interest in the property and if he does not the heirs can force him to do so with legal action. When he passes his half will go to whoever he leaves it to in a will, or if he also has no will, it will go to his biological or adopted children also in equal parts. Therefore, the children of both husband and wife will have a greater share than the children of only one of them. Unless there is an agreement among the children to do something different.

There is a probate procedure that can go through the court to determine who are the rightful heirs of the wife, even without a will. Heirship Proceedings. There is also a document that can be prepared and filed in the deed records that will not go through the court but puts potential buyers on notice of the heirs called an heirship affidavit. It is less effective but also less expensive than an heirship affidavit and is better if there are two of them prepared by someone with knowledge of the required facts but not an interested party.

You should seek the assistance of a probate attorney with your specific situation to determine the best course of action for your situation.

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