Estate Law
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Answered in 7 minutes by:
3/4/2014
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 22,768
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
VerifiedLegalGems :
Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! How was title to the house held upon your mother's death- was it joint tenancy with right of survivorship?
Customer :
I really do not know. It may have been only in Dads name or in his and Moms names together.
Customer :
I do know that house was 100% paid for prior to Moms death in 1985 and his death in 1996.
LegalGems :
Ok. The first thing to do would be to go to the recorder's office to determine how title was held. Most married couples hold it as joint tenants with right of survivorship. What this means is that when the first spouse dies, the second spouse takes, as a matter of title due to the way the deed is held, 100% ownership of the property. Then, it would depend on how title was held after the re-marriage.
LegalGems :
In Texas, there is community property and separate property. When a party dies via intestate succession, the surviving spouse is entitled to a life estate (right to live) in 1/3 of the decedent's separate property (remainder to kids) and to all of the community property. If the will leaves less than this amount to the surviving spouse the surviving spouse can challenge the will and get this amount. The will would not have an impact on a house held as joint tenant with right of survivorship (JTWROS) because this passes outside of probate. If the deed shows the step mom as full owner, it would require a legal action to challenge the deed, as title is presumptive.
Customer :
Stepmom says she wants to be free of it before she leaves country, but did state that lawyer told her back then that she should get 1/4th. Our lawyer told us back then that she had the right to live in it as long as she lived or until she remarried or she abandoned it. If she leaves the country without doing anything about signing property over, what would we do then? I think the property was titled just to Dad at his death and do not know how she got it changed to show "her name estate". We believe that she knows she is not entitled to 1/4th (or anything) but wants to trick us into paying her 1/4th and do the paperwork without an attorney before she leaves the country. Because an attorney would say she is not entitled to any of it. if she chooses to leave. would that be correct if it was titled onlt to Dad?
Customer :
We had the will that showed Mom and then the 3 children...but were told because he had remarried, the stepmom had the right to live there but not own it.
LegalGems :
If it was titled only to your dad, then it would be his separate property. And that is when the life estate comes in - the 1/3 life estate (that means she can live in it until she dies/abandons). I think she just got the % wrong. The children are considered the "remainderman" and are the heirs at low after the life estate is expired.
LegalGems :
I'm getting you the statute.
LegalGems :
This is their homestead correct? (Marital home; not vacation)
Customer :
correct.
LegalGems :
OK, so under Art 16 of the state constitution, the surviving spouse is entitled to live there the remainder of her life- but the children are the remaindermen, so the children would be entitled to the house upon death/abandonment. With that being said,however, the title issue needs to be explored, because somewhere along the way it was deeded to the surviving spouse - which complicates things. There should be a paper trail at the recorder's office. Once you negotiate with her (after determining how she got on the deed), then she could execute a QuitClaim deed which transfers all of her interest in the property to the grantee(s).
LegalGems :
Per probate code 282:
The homestead rights of the surviving spouse and children of the deceased are the same whether the homestead be the separate property of the deceased or community property between the surviving spouse and the deceased, and the respective interests of such surviving spouse and children shall be the same in one case as in the other.
Customer :
Are there legal ways she could have got her name on the deed under the circumstances I have explained? Or would she had have to do something underhandedly to get her name on it? She has not talked to us for all these years and now all of a sudden contacts us and says she needs to do the papers before she leaves the country and would like us to" give her some money whatever amount we can, but not a penny". then she mentioned the 1/4th. If she abandons it, what would our course of action be? Once she leaves the country, I am sure we will have no contact with her or even know how to contact her.
Customer :
She mentioned that she does not want the lawyers to get 6% or whatever they say when we can do it, just between us and save that money.
LegalGems :
It would really depend - if the first surviving spouse had the property via joint tenancy with right of survivorship, then it was his to do with as he wished - so he could have gifted it to her. If it could be proven that she used undue influence (very difficult to prove, especially after the person has passed) the transaction could be voided. If he was of unsound mind at the time of transfer, it would also be voided. If she abandoned it, suit would need to be filed to determine there was an abandoment, she would need to be served, etc. That is a very long and complicated process. If she didn't respond, the court generally would not act until it is clear that there was abandonment (ie taxes not being paid).
LegalGems :
Lawyers don't charge typically a 6% fee - that is more in line with a realtor's commission.
LegalGems :
It sounds like she may be open for negotiation. Your siblings and you should discuss what they think is a fair number and go from there - after verifying the deed issue. An attorney can prepare a quit claim deed for a flat fee.
LegalGems :
Here is a sample quit claim deed: http://www.collincountytx.gov/law_library/forms/QuitclaimDeed.pdf
Customer :
If she does abandon it, should we pay taxes ourselves, and could one of us or our children move in? Is a quitclaim deed a form that we could do ourselves, or do we need an attorney for that? 6% realtor fee sounds right to me, what should we expect an attorney to charge? I know they are all different just a ballpark figure would help. We do know that her (stepmom) name was not on it at the time of his death, (we just dont remember if it was in his alone or his and Moms names). There is a major language barrier between us and her (she is Fillipino) so sometimes we are not sure if she is saying what she means.
LegalGems :
I can't give specific legal advice, only information and then you would need to make a decision on that. But if a non-owner pays taxes on a third person's property,it is very difficult to get that money reimbursed absent an agreement. As for moving in to the house prior to a change of ownership, that would be a trespass absent owner's consent. You may want to have negotiations in an attorney's office, with a translator. An attorney can charge anywhere between 200-400/hour (and some will take cases as a flat fee after estimating what time involvement is required).
Customer :
We do not really want to live there but would rather someone in the family live there than it sit vacant and subject to vandalism, while we get it worked out, if she abandons. She is pretty flaky. So we don't need to be concerned with her asking for reimbursement of property taxes that she paid while living there either, right?
LegalGems :
She of course always can in the negotiations, but legally she could not insist unless there was an arrangement to the contrary.
Customer :
Well that is good to know...Back to the 1/4th or 1/3rd...just to get it clear in my head...If the property were seperate property of Dads, she only had the right to live there, not own any portion of it...but if it was community property or a joint tenacy then she would have a right to 1/3rd? Is that right?
LegalGems :
If it was his Separate property (SP), then the surviving spouse is only entitled to the 1/3 life estate (right to live there). If it was community property, surviving spouse inherits 100%. However, under the homestead law, the surviving spouse gets a life estate in either separate/community property if it was the "homestead" (marital residence). {I know it is confusing}.
Customer :
for a value of the property, should we get a current appraisal or would it be based on fair market value at the time of Dads death?
LegalGems :
No, it would be current value for any transactions occurring now.
Customer :
Ok, so if it was his separate property that was homesteaded, she only has the right to live there and has no interest in ownership...correct?
Customer :
and yes it is confusing.
LegalGems :
That is correct.
LegalGems :
It requires working with terms most people don't use on a regular basis.
Customer :
Ok, thank you, XXXXX XXXXX a way I can print this conversation out...I am afraid I will get confused if I don't keep a copy.
LegalGems :
The site administrators will send you a link to this chat page in your email, so you can come back and access it at your leisure.
Customer :
Ok that is good for people like me. Just one more area of concern...after Dad died, stepmom sold his handicapped van and has continued to drive his car(for 18 yrs) and has had all the contents of the home to herself...we assume the furnishings are still there (along with our family/childhood photos etc). Should she have paid us for any portion of the things she sold or otherwise used up? Just thinking about using those items in negotiations, if it gets to that point.
LegalGems :
It would depend on what the will stated. If he left it to her, then it would all belong to her. If it was via intestate, surviving spouse is entitled to 1/3; if community property 100%.
Customer :
No she was not mentioned in the will at all. He did not even know her when the will was done.
LegalGems :
No- I meant if he revised the will upon the remarriage.
Customer :
Oh, no he didn't, although she tried to get him to.
LegalGems :
Well that's good at least! So it would be intestate.
Customer :
Its just that she came here with one suitcase and no money...He was elderly and was duped into bringing her here by a nurse in the hospital...She got here on Sunday and they were married on Monday...we found out afterwards...there is a whole Fillipino "underground" we were told by other nurses...and tend to believe them...she had some thirty something Fillipinos in his house within a week of arriving here in Texas...She previously hid in California for 7 years before coming here...She got US citizenship after marrying him.
LegalGems :
Then under those circumstances I would urge you to consult with an attorney. If it can be proven that the marriage was a sham (fraudulent marriage) it can be voided. However, that is very difficult to prove after one of the parties to the marriage has passed, so it would be an uphill battle. An attorney should be able to negotiate something when they become aware of such information. I would suggest you hire an estate planning attorney that is good at negotiations - she probably just wants something to make this worth her while.
Customer :
Yes I agree, I am just concerned that if we say we want to do this with an attorney, that she will just abandon it and leave us with a big mess...after all she knows we do not have the resources to find her in the Phillippines, and if she did get the deed changed into her name illegally, then she could be in trouble. and flee, leaving us with a big mess. She is just being too nice now, to not have spoken to us for 18 years...something is fishy.
LegalGems :
That is most unfortunate. I am sorry that you are having to deal with this. Presumably she would want to get some payment -if she contacted you I would imagine that means she is interested in negotiating, as she didn't sell the house on the open market.
Customer :
Probably so...It is just frustrating to have to pay for Dads mistakes...None of us really even want the house, we would just like to have the family photos if they are still in there.
LegalGems :
Oh, yes of course - those are priceless.
Customer :
Yes, between the three of us, we have two different photos of our Mother, none of Dad or our childhood pics.
Customer :
thanks for your help.
LegalGems :
You are welcome. I hope all works out smoothly for your family.
Customer :
Me too. Have a good night.
LegalGems :
Night.
LegalGems :
I see you rated my service as poor - was that an error as you seemed to appreciate the information I provided?
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 22,768
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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