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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 86618
Experience:  Fully licensed attorney in Texas in private practice.
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My sister-in-law passed away in May, 2013. Her 50 year old

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My sister-in-law passed away in May, 2013. Her 50 year old disabled daughter has been living with her for the past 6 years, taking care of her. My sister-in-law has 4 daughters. Two of them want the family home sold and split the profits among the 4 girls. The third daughter does not care if the home is sold. My sister-in-law left a will splitting all her property between her 4 daughters. Does my niece have any legal rights to the home? Can she homestead? She has no other place to go.
Submitted: 10 months ago.
Category: Estate Law
Expert:  Ely replied 10 months ago.
Hello and thank you for requesting me.

I am sorry for your sister-in-law's family's loss. Can you please tell me:

1) Did the home have a mortgage or was it owed free and clear?
2) Did the mother have a Will? If so, who did the home go to in the Will?
3) Whose name was on the deed besides the mother, if anyone's?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 10 months ago.

1. The home was paid for, not mortgage
2. My sister-in-law had a will leaving all her property to her 4 daughters.


3. No one else is on the deed besides the mother.

Expert:  Ely replied 10 months ago.
Thank you.

First of all, we need to discuss how probate works, and then what to do is the beneficiaries cannot agree as to what to do.

Probate
When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' hands.

The Executor files a special executor deed (sometimes called something similar) with the Clerk-Recorder of the county where the property is located (the LETTERS allow them to do so), taking the property out of the deceased's names and into the names of the beneficiaries, i.e. the sisters.

Partition
Once this is done, then they are expected to work something out. If they cannot, any one of them or all of them can file a partition action with the Superior Court. This partition action will explain that they cannot agree as to what is to be done with the property and as such, the Judge will decide as to what is most equitable, be it that some are bought out, or the property is ordered sold and the profits split, etc. This is at the discretion of the Judge.

I am afraid that the sister that has lived there all this time does not have any "special" claim to the property because it was not hers in title. Homestead applies to property that has been owned by her for some time, and also deals with creditors, but not title disputes. I am sorry.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 10 months ago.


I forgot to mention that my sister-in-law left a hand written letter stating that she wished for her disabled daughter to stay in the family home for at least one year but not to exceed 3 years. Does this info help her situation at all?

Expert:  Ely replied 10 months ago.
K,

Thank you for your follow up.

I forgot to mention that my sister-in-law left a hand written letter stating that she wished for her disabled daughter to stay in the family home for at least one year but not to exceed 3 years. Does this info help her situation at all?

Yes!. This is called a "holographic will." A holographic will is a handwritten will. In order to be valid in Texas, a holographic will must be completely in the handwriting of the testator and signed by or her. It may be written on anything, and does not have to be signed by witnesses or a notary.

However, the onus is on her to FILE that with Probate Court and prove (if challenged) that the note is valid and is in her handwriting.

If the Judge agrees, then she would get to live in said property for 1-3 years regardless of what the other beneficiaries want.

An attorney is strongly recommended. May I recommend the TX Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 10 months ago.


Does my niece need an attorney to file the holographic will with the probate court? The letter was not attached to her will, does that matter?

Expert:  Ely replied 10 months ago.
Does my niece need an attorney to file the holographic will with the probate court?

Although it is not mandatory, it is highly recommended, because an attorney knows how to navigate the legal system, what to file, how to introduce evidence, what to say in Court, etc. Going to court without an attorney is like going to a Japanese reception where you are the guest of honor, and without an interpreter.

The letter was not attached to her will, does that matter?

No. It can be viewed as a codicil (an amendment/addition to the Will). A codicil - like a will - may be holographic (hand-written).

The will may be typed and the codicil handwritten, or vice versa.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 10 months ago.


I had to put my credit card number in two different times in order to get your help. Each time it was approved. Will I get a refund on the second charge? I cannot find any place on your website to ask for a refund. Thank you for your help.

Expert:  Ely replied 10 months ago.
Karen,

It seems that you asked this question twice. One was marked as a duplicate. To get a refund on it, simply contact customer service here (upper right-hand corner) and ask them to refund you for the question which was marked as a duplicate/sent to customer service. They should know which one.

Meanwhile, please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied. Do not worry, this should not affect your refund. It is important to explain that you want a refund on the question which was NOT answered/rated. They will know.
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 86618
Experience: Fully licensed attorney in Texas in private practice.
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