I have been hired to represent the older son among three grown siblings (all in their twenties) in an heirship
proceeding, inasmuch as the father died without a will. The father was divorced from their mother, as well as from two other women of whom we know little. He lived alone in his homestead, inasmuch as each of the three adult siblings had moved away.
We have not yet filed even the first motion to have my client declared the personal representative in an heirship proceeding. indeed, we have not even yet filed our motion for an heirship
However, these three siblings, with the proactive encouragement of a real estate
agent and a title officer. found a buyer for the house about 6 weeks ago and all parties are anxious to complete the sale ASAP. On the basis of an affidavit of heirship which my client apparently signed for the title company (though I have not seen it), this title officer has counseled these three adult children that they are legally free to go ahead and sell the house, pay off the mortgage and divide and spend the proceeds as they like.
However, I have serious reservations as to whether it is lawful for them to do so, when no heirship proceeding has even been filed with the court thus far and , therefore, no personal representative appointed.While I understand that a homestead in Texas would pass outside of probate
, I believe that my client needs initially to qualify as the personal representative (which requires the filing of all manner of notarized documents, including proof of death by both a death certificate and an obituary, an inventory of all assets and debts, published notice to creditors and the appointment of an guardian ad litem to search rather extensively toward establishing with certainty that no other rightful heirs
exist. These preliminaries alone will obviously take some significant measure of time, before we even get to the ultimate point of a formal hearing to qualify my client as the legal representative, The hearing requires not only his sworn affidavit and testimony , but also the notarized affidavits and live testimony of two disinterested witnesses who can supply general details pertaining to the family structure, together with notarized waivers from the remaining two siblings as to the appointment of one as personal representative, together with their own live testimony. Assuming that my client is then appointed personal representative, then we will file for an independent administration
and he will have the blessing of the court to act as essential executor of the estate.
But, he has no standing whatsoever with the court at present and I earnestly question whether he can be selling off the intestate
's assets, even the non-probate assets
such as a homestead, without appointment by the court. I even wonder whether this home qualifies as a "homestead" for purposes of passing as a non-probate asset because it is essentially no homestead anymore. A homestead requires the owner or even some member of his family, going so far as to include unmarried adult children, to be either living there or intending to return there if they have been absent for a significant period of time.
Can you advise me as to whether i can condone or should oppose this sale of the house at this point of the heirship process which has not even formally begun?