My step-mother, a resident of El Paso, Texas, passed away in 2009 & did not leave a will, name an executor, or put my father's name on the deed to the house. He began proceedings to have his name placed on the deed, went to court with signatures of her family members (brothers, sisters, nieces, nephews, etc.) stating they were not interested in inheriting the house, she had no children of her own (natural or adopted) and the judge ordered a determination of inheritance (??). My father has been paying the mortgage and property taxes since she has passed, but it is financially becoming difficult for him. The mortgage company won't talk to him because his name is XXXXX XXXXX the mortgage/deed. What can he do? How much will it cost? Is this a process he can do on his own, or does he absolutely need an attorney to do this for him? He stated that the court would not even give him the forms for this Determination of Inheritance. I don't live in Texas, but I want to help my dad so that he doesn't lose his home. Thank you.
State/Country relating to question: Texas
I've only spoken with my father. I haven't been part of the proceedings as I live out of state. As far as I know, he had an attorney and no longer can afford one. They did see a judge and provided signatures of family members stating they did not want the property. That's about as much as I know.
Under Texas law, when a person dies without a will the estate is devolved through intestacy. This means that any community property would go 1/2 to the surviving spouse and the other 1/2 goes part to the surviving spouse and part to the other heirs. Section 38 of the Texas Probate code states:"If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate."This is what the court is stating here. The court has to determine who the heirs are to the separate and community property and then once those heirs are determined, if they want to deny their share of the estate they may do so in favor of the surviving spouse and the court will enter such an order. He really needs a probate attorney to complete this probate here and get the property placed into his name.
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I'm not sure if you received my initial reply. My father already obtained signatures from all her living family members (the heirs), including nieces & nephews, stating they did not want their share. The only item in question is the house...no money. He had a probate attorney who stated that is what he needed, so again, now what can he do? Again, does he absolutely need another probate attorney or can he proceed on his own?
I am sorry, I understand he received signatures from them, but did not understand that his probate attorney had already presented this in the probate court, which has to be the one to declare that their waiver of the estate is valid. In order for your father to proceed to complete this probate, with signatures of the other heirs waiving their claims to the estate in favor of your father, everything has to be heard before the probate judge and when the judge is satisfied that the legal heirs have waived their shares, then the judge can enter the order. Your father can proceed without a probate attorney if he is comfortable in court presenting his case and evidence, many people are not. If your father is comfortable presenting the case before the probate judge, then he does not need an attorney, he can complete the probate process and get an order of possession himself from the court. The statement you made above about the court needing to make a "determination of inheritance," simply means that the determination must be made in a court hearing upon presentation of evidence and the court validating that the legal heirs were the ones who did sign the waivers and there were no other heirs that were left out. If there are no disputes over the estate, he can do this without an attorney (an attorney would likely charge him about 5% of the total value of the estate to complete this process). If any Heir shows up wanting to dispute the estate, then he really needs an attorney because the Texas probate code gets complicated when dealing with separate property of a deceased spouse, which is what I understand this house to be if his name was never on the deed with her name.
Experienced in Trust and Succession Law, including Louisiana Laws
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