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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 45631
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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My father and his wife lived in Houston, Texas. He passed

Customer Question

My father and his wife lived in Houston, Texas. He passed away in 2005. His will named my sister and me as heirs to his estate. Texas is a Community Property State so his widow has been able to remain in the home they shared. She is now on SS and has very limited income. My sister and I have been paying the property taxes, insurance, and the subdivision association fee for most of the last 7-8 years. However, due to several circumstances in both my sister's life and in mine, we can no longer afford to pay for the taxes, insurance, etc. What are our options in terms of requesting or requiring she move out so we can sell the property? Or any other way this can be resolved. We REALLY need help fast. Thank you!
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good afternoon. At the time of your death, did your father and his wife both own the house as community property or did your father own this house prior to marrying his widow? Thanks.
Customer: replied 12 months ago.

Good evening,

I have finally been able to access my account after Just Answer has had to change my PW three times.

I have answered your question a couple times on different screens and had a feeling you weren't getting my replies.

My father both the house approximately 30 years ago when he was married to his second wife. They lived in the house until she passed away in 1999. He married his third wife in 2000 and lived there with her until his death in 2005. Hope this answers your question and I'm happy to provide any info. It should be much easier now that I can access the account.

Thanks!

Paula

Expert:  Richard replied 12 months ago.
Thank you so much for following up. You are correct..I never received your response. I appreciate your patience and I truly apologize for any inconvenience.

Thanks so much...it does. So, the surviving spouse has a life estate. As the owner of a life estate, she has the legal requirement to pay to maintain the house, including paying the property taxes, HOA fees, and any repairs. Since she has not been paying these, you can terminate the life estate. If she will not voluntarily agree to a termination, you can file a suit and the court will order it forfeited. Ownership then vests in you and your sister and you can move forward to sell the house.

After the termination of the life estate, you can force her out, but you have to you do need to go through the legal process to avoid being accused of an illegal eviction. After the life estate termination, she would be legally deemed to be a month to month tenant. As such, you can terminate this tenancy by giving written notice of at least 30 days. If she does not leave voluntarily, under Texas law, you will then need to give a 3-Day Notice to Quit...meaning she must vacate the premises within that period or face formal eviction. Then, if she still has not left, you will have to file a petition for an eviction order. Once that is granted...you can have the sheriff evict. Unfortunately, you are not allowed to move her stuff out, change the locks, or take any other means of "self-help" eviction prior to obtaining the eviction order. In the interim, if she poses any threat to your person or property, you can get a restraining order to get your relative out of the house immediately while the eviction process runs its course.



This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that you could just automatically terminate the life estate and then force her out immediately, but I can only provide you information based on the law so that you can act on the best available information to you. ………..I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!


Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Customer: replied 12 months ago.

Thank you so much for the reply. Although this may be a difficult message to deliver, it actually brings a logical solution to our dilemma. Three questions.


 


First, are you in a position to handle this as the attorney for my sister and myself?


Second, if we asked her to reimburse us for what we have spent on the taxes and HOA fees, which I doubt seriously she can do, would that be advisable with the understanding that she would have to shoulder this responsibility from now on?


Third, it is the attorney for my father's estate who told us on many occasions that: 1) because Texas is a CP state, she could live in the house as long as she desired. He did say it was her responsibility to pay taxes and HOA fees. When she stopped paying, we were told that if we didn't pay taxes, it would impact our credit, my sister and my credit. We paid him $20-25k to help us settle the estate and a large portion of that was around this issue. Do we have any recourse against him, especially if she can't repay the thousands we have paid in taxes and HOA?


Thanks SO MUCH!

Expert:  Richard replied 12 months ago.
You're welcome...it's my pleasure!

1) I wish I could, but under my terms of service with JustAnswer, I'm not allowed to do so. Also, I'm not allowed to make a specific recommendation, but I can give you direction. You would want to either contact the state bar association or your nearest law school for a referral...such as the UH Bates College of Law or South Texas College of Law. . I prefer the law school route because they take great pride in their graduates and will take a more personal interest in making sure your referral is a good one because it will be a reflection of the school.

2) Yes, before moving to terminate the life estate, you can ask that she reimburse you for prior costs and pay them going forward. If she can and will do that, if you don't want to deal with the house immediately, this is a good solution because you get the house in the end anyway.

3) It would depend on when you were told this. The statute of limitations is two years, so you would need to be within two years of when he advised you of this. :(


Customer: replied 12 months ago.

Thank you so very much. I will give you the highest rating possible later this evening as I have to run out.


 


May I ask what law school you attended? I assume you would be on their list of graduates whom they recommend. (Hey, I told you I'd really, REALLY like your help. :)


 


(Obviously, if you really can't because of your contract with JustAnswer, I will reluctantly submit. HOWEVER......if they is a way we can secure your help through any 'legal, moral, and ethical' channel, I turn into Super Woman on a mission!

Expert:  Richard replied 12 months ago.
You're welcome..You've made my day! I went to SMU Law School. And, I do truly wish I could, but I have an agreement with JustAnswer and I like to honor my agreements. :) I have no doubt of your abilities! If you do need some help along the way, you can always come find me at: http://www.justanswer.com/law/expert-legalbeacon/


And, thank you so much in advance for the positive rating! I appreciate having had the opportunity to serve you!
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 45631
Experience: 32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
Richard and 8 other Real Estate Law Specialists are ready to help you
Customer: replied 12 months ago.

Good evening, again,


 


I met with my sister and reviewed my correspondence with you. We need one piece of clarification and if we need to pay for that, we are willing.


 


Neither of us has heard the term 'Life Estate' and consequently are a bit confused. What my father's attorney told us on several occasions is that Texas is a Community Property state and Texas has Homestead laws. I remember him using the term Community Property law and my sister the Homestead term. In either case, we are certain that he told us that it is the CP/Homestead laws that allow our father's surviving spouse to remain in the house, "as long as she wants".


 


So, in Texas, does the Life Estate have to be in writing to be in effect after the death of a spouse? Neither of us is aware of any mention in the will nor any addendums to the will stating the creation of a 'Life Estate'. We just need some clarification around this before we move forward. We agree we want to offer to let her stay in the house, if she can and will reimburse us. If she can't, we will inform her that she must vacate the premises and why. Since I was the one who told her that she could live there indefinitely, I need solid legal documentation to show her why her rights are terminated. She was told it was her responsibility to pay taxes and HOA and she did pay them at first. However, the small business my father owned and she managed was forced to close its doors a year or two after his death and she had no income and opted to go on SS benefits. So, I need to be very clear and able to communicate this to her and would appreciate your lay interpretation of the law. And, if it is easy for you to give me the location of the laws in state records, that would be amazing.


You have already eased our troubled hearts considerably. My husband is a pastor of a small church and I have been out of work for some time. The mounting financial pressure is taking a toll. I am hoping Dad's widow will get help from her adult children and be able to remain in the house, repay us what we have paid, and keep up with the financial responsibilities so everyone would win.


Thanks you again and again!


Paula Bussard

Expert:  Richard replied 12 months ago.
Hi there and nice to hear from you. Homestead rights are basically the same as a life estate and the rules are the same....she does have the right to live there for the remainder of her life, but in order to do so, she has the same obligations as someone with a life estate...i.e., the obligation to pay the property taxes and maintenance of the house; if she fails to do so, then she forfeits the right to her homestead rights/life estate. Neither the benefits of homestead rights/life estate rights come free; rather, with the benefits come the burdens and if she fails to be responsible for the burdens...i.e., the taxes and maintenance...then she loses the benefits.
Customer: replied 10 months ago.

Good afternoon!


Hopefully you remember me and also have access to our correspondence. I wrote to my father's widow in August explaining that I am not working and my husband has not received a raise in salary at the small church he pastors. Consequently, we are getting into more serious financial challenges and I could no long pay the taxes and homeowners on the house. So, I gently suggested one of two options. 1. If she is able to repay what my sister and I have paid (taxes and HOA) for the last 7 years by Aug 30 and understood that she would be responsible forward, then we would be very pleased with that. If, however, she could not do that, we were asking her to move out by the end of September. I asked her to let us know what she would do by August 15.


We received no word of her decision, so I sent a letter around the 22 of August saying that we 'assumed' that no word meant that she is planning to move. I told her that I would plan to come down the first week of October to begin to get estimates to get the house ready to go on the market.


On Saturday, I received a letter from her, "Dear XXXXa, If it is your plan to evict me you need to send me legal notification. Thank you. Betty


Meanwhile, while I was communicating with you, my sister also consulted with an attorney on Just Answer. Here is the transcript of the conversation she had. As you will see, it seems to contradict your conclusions on our options.


It would be most helpful if you could re-read your comments, read his, and merge the two opinions for us. We really, really need help and a decisive course of action. Thanks so much, Paula

Expert:  Richard replied 10 months ago.
Hi there. I do not see the transcript of the other attorney's comments in your narrative. Can you provide me a link or re-post them? Thank you.
Customer: replied 10 months ago.

Sorry. Here it is:


http://www.justanswer.com/family-law/7wo48-texas-probate-code-282-286-financial-responsibilities.html?utm_source=addthis&utm_medium=button&utm_campaign=addthisqapage2#.UiYh-f3QpjM.email

Expert:  Richard replied 10 months ago.
Thank you. She does have a current possessory interest, BUT with that comes the obligation to pay the expenses we have talked about. She has failed to do this. She does not get to continue to get the benefits of a possessory interest without also taking on the burdens of that possessory interest. If she does not pay these, she can be relieved of her rights for failure to live up to her responsibilities. They go hand in hand. If you move to terminate her possessory interest due to her failure to bear the responsibilities that are coupled with that possessory interest, when this goes to court, although one can never say with 100% certainty what a judge will do, I can tell you that based upon my 33 years of experience, the judge is not going to allow her to seek protection from the court when it is she that comes to court with the "unclean hands."
Customer: replied 10 months ago.

Okay! Thank you. That is the logical conclusion, but the law isn't always logical! So, what is the least expensive way I can send her 'legal notification', as she requested? Or what do I need to do next?


 

Expert:  Richard replied 10 months ago.
I would send her the information I provided above about rights and responsibilities being "coupled" by letter sent by certified mail ...and tell her if she wants to retain her rights, she must bear the responsibility that accompany those rights. I would let her know that otherwise you will have no choice but to proceed with a legal proceeding to dispossess her of her homestead rights due to her default. You can do this by a letter you send yourself.
Customer: replied 10 months ago.

Then that is exactly what I will do! Thanks for the legalese, which I will include. I did send the gentle letter via certified, but will put some teeth with this letter. Your advice to "tell her if she wants to retain her rights, she must bear the responsibility that accompany those rights. I would let her know that otherwise you will have no choice but to proceed with a legal proceeding to dispossess her of her homestead rights due to her default." means I should give her more time to reimburse us, or can I use your language 'requiring' that unless she pays, she is expected to be out by 9/30? I will state that the letter I'm sending will serve as the legal notification, based on an attorney's advice. Is that all correct and best approach?

Expert:  Richard replied 10 months ago.
Sorry for the delay...conference call. Yes...go for it! And, let me know how it goes. :)
Customer: replied 10 months ago.

THANK YOU SO MUCH! Do I owe you for this follow up?


 

Expert:  Richard replied 10 months ago.
You're welcome...No, it's fine....no extra charge...just happy to help! :)
Customer: replied 10 months ago.

Hi, Richard,



Hope all is well with you and yours. I took your advice and sent a letter via certified mail. It arrived on Sept 5. In the letter, I outlined and quoted what you said about her right to stay in the home if she will reimburse us what we have spent on taxes and HOA fees. I told her that we are open to getting reimbursed and encourage her to stay in the home. We said that we are expecting her to move out the end of September and that I would go there the first week of October to begin the work to get the house ready to sell.


The mailing envelope and the letter inside were returned unopened to me today. So, what should I do? I assume I will need to file a report of some type at the Harris County Courthouse in Houston. Do I have to hire an attorney?


Thanks so much. You are so helpful!!


Blessings,


Paula

Expert:  Richard replied 10 months ago.
Hi Paula. Since she won't accept a letter, what you really need to do now is to file suit against her asking a court to terminate her life estate. It won't likely go beyond the need to file the suit because being served with a summons one is being sued tends to get their attention. Once you file the suit, you will have a process server serve this summons. At that point, she has to answer the lawsuit and show up for the hearing or you will be awarded a default judgment in your favor. The period between when she gets served and the hearing date is when this is likely to get settled because you have all the facts and the law on your side. You will want to engage a lawyer to help you file the petition, but given that it's not likely to require a trial in the end, it should not be that expensive!
Customer: replied 10 months ago.

Ok. Thanks. I've got to go to bed, but will re-read tomorrow.


You are the best!!

Expert:  Richard replied 10 months ago.
You're welcome..it's always my pleasure! Hope you sleep well! And, thanks so much for the kind words!

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