Oklahoma City, OK asked in Probate, Real Estate Law and Tax Law for Texas

Q: My father in law passed away in 2007 and my mom never probated the house. Is there anything she has to do to take clime

She lives in TX, paid the taxes on it every year, but isn't sure what she needs to do to be able to sell it.

2 Lawyer Answers
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: Houses aren't probated. Estates are probated.

A key question is who owns the house. If the house was purchased during the marriage of your mom and father-in-law, it most likely is community property.

When your F-I-L died, your mom owned 50% as her community property and your F-I-L owned 50% as his community property. Your F-I-L's 50% interest would pass to your mom only if he had no lineal descendants (kids, grandkids, etc) at the time of his death or if all of his lineal descendants are also lineal descendants of your mom. If your F-I-L had lineal descendants alive at the time of his death who are not also lineal descendants of your mom, then his 50% interest passed to them.

Your mom has widow's rights to occupy the homestead under Texas, but has a corresponding obligation to pay the property taxes during such occupancy. So, her paying the taxes on it every year is not dispositive of her ownership rights.

James L. Arrasmith
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  • Probate Lawyer
  • Sacramento, CA

A: In Texas, if your mother-in-law wants to claim ownership and sell a property after her husband's death in 2007, she will likely need to go through the probate process. Even though she has been paying the property taxes, probate is necessary to legally transfer the title of the property to her name.

Since your father-in-law passed away in 2007, she should check if there's a time limit for initiating probate proceedings in Texas. Generally, probate should be initiated within four years of the date of death, but there may be exceptions or specific conditions that apply to her situation.

She should locate your father-in-law’s will, if there is one. The will would typically outline how his assets, including the house, should be distributed. If there is no will, the property may be distributed according to Texas intestacy laws.

Consulting with an attorney who specializes in probate or real estate law in Texas is advisable. They can guide her through the probate process, help with filing the necessary paperwork, and ensure that all legal requirements are met for her to claim ownership of the property.

Remember, taking care of these legal formalities is essential before she can legally sell the property. It's important to address this matter promptly to avoid any potential legal complications.

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