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RONB-ESQ
RONB-ESQ, Attorney
Category: Estate Law
Satisfied Customers: 357
Experience:  Right of Way Manager at Access Midstream Partners, LP
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This question is for: Mr RONB-ESQSir, I have another

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This question is for: MrCustomerSir, I have another question regarding the estate of my ex-husband...
The widow has abandoned the house after 5 non payments to mortgage, non payment to 2015 homeowners fees, and without paying utilities. She hand-wrote a letter to my son telling him in the letter that she is "giving him the house..." so my question is, can this be used as proof of her forfeiting her rights to the home? or does she retain her rights as widow?
Also, if I proceed with the heirship for my children, if the 2 eldest adult girls do not respond or come forward during procedures of heirship, do they forfeit their parts and my son becomes sole heir or are all children automatically placed as heirs? Thank you.
Submitted: 10 months ago.
Category: Estate Law
Expert:  RONB-ESQ replied 10 months ago.
Hello my name is ***** ***** I am a licensed attorney. I welcome you to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. The question and response may be viewed by other parties as noted in JA’s terms of service. By continuing, you confirm that you understand and agree to these terms. Question: The widow has abandoned the house after 5 non payments to mortgage, non payment to 2015 homeowners fees, and without paying utilities. She hand-wrote a letter to my son telling him in the letter that she is "giving him the house..." so my question is, can this be used as proof of her forfeiting her rights to the home? or does she retain her rights as widow?While this could be argued in a factor to show that she abandoned the home it does not convey the home to your son. I know it gets confusing and if I said something different before bringing to my attention to I can put it into context. She is entitled to a life estate once you go through probate, even with that life estate interest your "Deed of Trust" trumps her interest and allows you to foreclose. To remove any claim she has you would need her to sign a quit claim deed to your son as that would convey whatever interest she has in the property. If you go to probate she will be entitled to notice of the hearing and will be entitled to the life estate interest. Even if she does not live there, she would hold that interest if granted through probate and she could hypothetically lease it out. She could only lease what she owns so all she could lease is her life estate and upon her death the tenant would no longer have a right to occupy. You probably need to update me as to whether you have sought to foreclose and/or bring a probate action. Question: Also, if I proceed with the heirship for my children, if the 2 eldest adult girls do not respond or come forward during procedures of heirship, do they forfeit their parts and my son becomes sole heir or are all children automatically placed as heirs?Upon filing an application to probate the estate you will be required to either get his children to sign a waiver saying that you don't have to have them personally served with your application. If they sign this in front of a notary they can mail it back and the Court will accept that in lieu of you having to pay someone to serve them. They can also renounce their inheritance and it will go to others as through they died before your ex-husband. If they don't renounce (there is a different legal word, but I can't think of it as the moment) then it is likely that in the event of say the home they would simply be added to the deed and would have an undivided interest with your son. The foreclosure with your son showing up to bid just enough to buy it cancels widows right and would do away with daughters, but you still have to confirm with a local real estate attorney if you can foreclose on the home by just giving notice to the property. If you have to start a probate so that notice can go to his estate then it will be more drawn out. My opinion without research is that you simply provide notice to him and all occupants of the subject home and then set it up for sale. If you confirm you can proceed this way you should tell you son to keep the blinds closed, let the grass grow up and keep it looking messey as then any other party that gets notice of the sale will may be afraid to bid anywhere near market price. Please ask as many follow ups as needed of if you want a phone call please type it here instead of hitting request button. If you mention here we can schedule a time for both of us. If you hit the button and I don't respond within 5 minutes it goes to all experts. I have been doing more estate planning from home and have not been staying in front of the computer all evening. I will check back every hour or so and see if you have responded. If you know you will be available at a certain time let me know and I can probably be in front of computer at that time. I may need to take some estate planning documents to a client in the hospital that is passing on and so if she is available I will likely be gone a portion of this afternoon/early evening.
Customer: replied 10 months ago.
This response is for Mr.CustomerSir, thank you for responding.
I am a bit nervous with the information you have provided, let me explain...
Since the widow abandoned the house at the end of March 2016, I went ahead and paid up-to-date the mortgage and the homeowners fees because I didn't want the bank to foreclose and I knew that this could be reimbursed with the deed of trust. I believed that since the widow abandoned the house, moving in was going to be a good move since I could not afford rent and a mortgage payment at the same time, and paying the mortgage is linked to preserving my credit. I was advised by a lawyer that if we moved into the house, no one could kick us out since my son is an heir. We were told that since she abandoned the house, she forfeited her rights to the house (is this true?). We know that the widow has purchased a new home, so it was likely that she was not moving back in.With the news that we could not be kicked out if we moved in, I proceeded to inspect the house. The house was unlivable. There are rats in the attic, the foundation is collapsing, the exterior is falling apart, and plumbing has leaks everywhere. So in order to move in, and to preserve my children's inheritance...I decided to liquidate my retirement money and have for the last 2 weeks been paying for all issues to be fixed to the house. We will move in at the end of the month. I decided on this because the house stands to make more than 80K if sold. I could not allow the bank to take over and make this profit. I was going to proceed with foreclosing when we received the letter written to my son from the widow saying she is "giving the house to him" (3 weeks ago) which I understand she has no rights to "give" him anything, unless we are talking about her right to live in it? We have asked my daughters to give their portion to my son who is 16, but they refuse, since they "don't trust me." My daughters want nothing to do with the house, but will not give their portions to my son...so you see, i cannot ask them for a quit deed (this is why I asked the question, if they don't respond to the probate proceedings, will my son solely inherit, or will it be divided automatically with or without their presence?).My concern is this, and what has me very nervous post reading your response is, does the widow still have the right, after we move in, to kick us out of the house (e.g., to rent the house?) A lawyer told us no she could not evict us since for one, my son is an heir, and for two, there has been no lease agreement? Is this correct?
In summation,
1) I have brought up all bills with the house
2) I am almost finished putting 45K into the house (can this be reimbursed if I foreclose? Is fixing the foundation, killing rats, and making repairs to the home something I can be reimbursed for in a foreclose by the deed to secure assumption?
3) Daughters will not sign over a quit deed, yet
4) what rights, at this point, does the widow have toward the house after abandoning it and purchasing another home?Suddenly I am not too sure of the future...I hope I have not proven to be a fool for saving this house and come to find that the widow has rights to repossessing it? I feel that with time, I will be able to get my daughter's to support us and do the right thing... what can you advise? thank you.
Expert:  RONB-ESQ replied 10 months ago.
Customerhere again. Sorry for my delay I will be on and off tomorrow as well. Faced with all of those issues I would have recommended that you secure an attorney opinion (after he has review every fact and then put his name on the document if you know what I mean) as you know I am dealing with limited facts and may not always have the most up to date information. Foreclosing the home even now if done in a way that would nearly guarantee you are the buyer may still be the way to go. You would be foreclosing to recover on all payments made. The benefit to foreclosing is if you buy it at foreclosure and pay of the original note then you are the owner and you can deed to your son should that be your desire. Any interest she may be able to claim under a probate action is extinguished. Any interest your daughters might have under probate is also eliminated as the estate no longer owns the property hypothetically you do. I would seriously consider consulting with an attorney just to see if you could easily get clear title by foreclosing your interest and buying the home yourself at the current mortgage amount. If say your daughters file an action for probate then they could seek a portion and would be entitled to a portion of the property so long as it is owned by the estate. That is not to say that you could not seek reimbursement for money you spent on behalf of your minor child. I would just prefer that you were able to totally eliminate any risk coming from a future claim by daughters. The widow does not have much of a claim as a life estate is really not worth much. There will come a time where someone will want to sale the property and title will have to be cleared showing how it moved out of your ex's name in a legal way. If you foreclose that handles that issue. I would defer to a local real estate attorney that has looked at all the facts, but I strongly encourage to pay the small amount of money it would cost to consult with one compared with what may be at risk. I wish you the best with this. Ask as many follow ups as needed. Ron
Customer: replied 10 months ago.
Thank you for your response! I feel a bit better. I do agree that foreclosing is the way to go to obtain the house, but I am afraid of this: having other investors come in and out bid me and winning over me! But you mentioned this: "if you could easily get clear title by foreclosing your interest and buying the home yourself at the current mortgage amount." How can i do this? how can i purchase the house at the current mortgage amount? Do i not go up against other bidders if I foreclose on home? How could I buy the home with out others bidding? Thank you.
Customer: replied 10 months ago.
So the million dollar question is...Is there any way that I can foreclose and be the only bidder? Or, is there any way to foreclose, then simply turn around and buy the house (with no other bidders?)?
Customer: replied 10 months ago.
You mentioned: "Foreclosing the home even now if done in a way that would nearly guarantee you are the buyer may still be the way to go." How could I guarantee that I am the buyer? "If done in a way..." in what "way" are you referring to? You also mentioned, "buying the home yourself at the current mortgage amount" how could I buy the current mortgage amount if it will be sold at an auction to the highest bidder? Thank you.
Customer: replied 10 months ago.
Also, what if i just buy the children out? Offer to pay them an amount, as if I am purchasing the house, and get them to sign over their parts to me? Will I have to give anything to the widow in this type transaction?
Expert:  RONB-ESQ replied 10 months ago.
I would highly recommend that you consult with a real estate attorney that could also serve as your substitute trustee to conduct the sale. There may be effective strategies that make you winning more likely than not. I mentioned if it goes that direction you let the grass grow up and keep blinds closed so any other bidder can only assume the worst and that he/she will be out more money than it is worth to flip it. The local attorney may be able to time the sale to a date when there are multiple sales taking place on the courthouse steps and open and close bidding before people even know where to find you? You are investing a great deal of money in the property and it is worth paying several hundred dollars to consult with an attorney that routinely handles these sales so he can advise you as to strategy to accomplish your goals. IF you can foreclose without any need to have an administrator appointed by the probate court for your ex-husband then going the foreclosure route may be the best option to clear his name from title, remove any claim the widow has and remove all claims of your children. I doubt any attorney can give you a guarantee, but an attorney that handles these sales routinely could likely lay out your options and likely give you 75% or better odds to accomplish your goals. I know that the few times I have wondered around the courthouse steps during these sales there was no ryhme or reason as to how they were arranged. I am sure the professional bidders know how it works better, but many time you have multiple sales taking place at the same time with small groups of people gathered around the trustee. Ron
Customer: replied 10 months ago.
Sir, if I use the deed of trust to secure assumption to foreclose, can i also be reimbursed for repairs (foundation, painting, exterior repairs, plumbing, etc.) I have made? or is it only for mortgage payments and home owner's fees?
Customer: replied 10 months ago.
If we establish the children as heirs,
1) Doesn't this refinance the house in their names, taking me off the mortgage?
2) Are we able to eliminate widow's interests in house by showing that she abandoned it, in the process of placing children as owners?
Expert:  RONB-ESQ replied 10 months ago.
Question: Sir, if I use the deed of trust to secure assumption to foreclose, can i also be reimbursed for repairs (foundation, painting, exterior repairs, plumbing, etc.) I have made? or is it only for mortgage payments and home owner's fees?Generally the answer is no as the language in the deed of trust controls, but I can't remember if you were still on the deed or not. I think you were on the deed, but your actual divorce decree did award the property to your husband so even though you didn't sign a deed from yourself to your ex-husband the Court order could be used to show that you were divested of that interest as part of your divorce. I bring that up because if you are shown to be a partial owner then as part of an action to sale the property (not related to foreclosure) you could typically seek reimbursement for those extra expenses. You could also sue whom is deemed the owner under a theory of unjust enrichment, but you really want to avoid that as you generally can't recover attorney fees and though it is available it is not the same if hypothetically you and your son were each 1/2 owners and something caused a rift. As a joint owner you could file a partion action to separate the two of you from ownership and in the case of a typical residence this can only be accomplished by a Court ordered sale and division of proceeds. In that case you would be entitled to reimbursement of all such expenses. Either way until this is completely resolved you should carefully document and retain all receipts for anything invested. Questions: If we establish the children as heirs, 1) Doesn't this refinance the house in their names, taking me off the mortgage?2) Are we able to eliminate widow's interests in house by showing that she abandoned it, in the process of placing children as owners?1) I am uncertain what direction you are going here. If you mean that you go through probate and they are established as legal heir and therefore own as example 1/4 undivided interest (if 4 total heirs/children) then no just because they are the legal owners on the deed that does not change the contractual obligations as to the mortgage. If they don't refinance the mortgage into their names then it would continue to be in the name of your ex-husband and you. 2) You have asked about this twice now so I don't think I am being clear in my communication. If she has a legal ownership interest in the real property the only way that changes is if she signs a deed of that interest to you or someone else. In this case she has the potential to have an interest, but until your ex-husbands estate has been probated she has no legal interest to the property. If you go to probate then she would be notified of the case and at that time would be entitled to a life estate that she could either utilize, lease out subject to ending at her death or deed back to the other heirs. I think my main point here is there is 2 ways I see you can go if you want a home that has clear title such that it could be sold 5-10 years from now. One is to go through the probate process and attempt to argue that you at minimum are entitled to reimbursement for all cost incurred and any expenses that benefit the property. There is no absolute guarantee that you will recover 100% of such expenses and you will need to deal with the widow's interest along with your adult children. Two you could go through the foreclosure action with proper direction from a real estate attorney that deals with selling foreclosed property and seek to buy the home at such sell. I again can't guarantee that you would win, but if you would consult with an attorney familiar with selling homes on courthouse steps as required in Texas then you would have a better ideal as to your odds in winning and ways in which you could better your odds. The benefit to going through foreclosure is you do away with any interest the widow has in the property along with any of your children. If you could secure ownership by going in this direction you would not be subject to dealing with them in the future. I mention clear title and what I mean is as it sets now if you attempt to sell the home in 4 years (randomly picked 4 years) a title company would want a legal explanation as to why can't ex-husband sign a deed to new owners. If it goes through probate then it is settled there and it has went through the proper channels such that the title company can follow the chain of events and see that the children are now owners due to probate. If you don't go through probate and note that you don't have the legal right to go through probate once 4 years has passed unless you show evidence as to why legally it could not be accomplished, then in say 4 years if you sell the title company is going to need explanation as to why your ex-husband can't sign a deed to new owners. If you were not dealing with the widow and you wanted all children to own an equal share then there are ways you could do that. Here the title company would need a waiver signed by widow and your adult children otherwise they would want them to sign a deed to new owner. It may be that this would be easier to handle on the phone? I again highly recommend that you put all of this in front of a real estate attorney and determine your rights and what is at risk in making all these extra investments into the property. The only thing the note from the widow really shows is it is unlikely that she is going to file a probate action herself to try and get her life estate. It does nothing to clear title or officially show that she has no claim to the property. Ron
Expert:  RONB-ESQ replied 10 months ago.
I wanted to check back and find out if I could provide anything additional to further answer your question. If I have answered I thank you in advance for providing me positive feedback as that is the only way I am credited for the time I have spent responding to your question. I am sure this has all been quite stressful and I do wish you the best.
Ron

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