Dear Mr. Premack: My grandfather died nearly 6 months ago without
leaving a will. His children are up in arms about who owns his home on
half an acre. Some want to sell, some want to leave as is, but all refuse
to pay property taxes until ownership is established. How does the state
or taxing entity decide who the rightful owners are, and how can this be
sorted out? – AA
Texas intestacy law provides a process to
determine the identity of the new owners when a person, like your
grandfather, neglects to make a Will. The tax authority does not get
involved in that process, but adheres to the result produced by the legal
process. If all your grandfather left was the house (which was his
homestead) any one of his children can hire a certified attorney to
prepare a “small estate affidavit”.
The attorney must gather
information on your grandfather’s family history, the identity of his
heirs-at-law, and his debts (if any). The affidavit will contain that
information, and must be signed under oath by two people who personally
know the facts but who are not heirs to the estate. It is filed with the
probate clerk, along with a proposed Order approving the affidavit. A
probate judge reviews the information, and if it is all complete and
proper, signs the Order which confirms the listed heirs as the new
A certified copy of the Affidavit and Order
would be recorded in the real property records at the courthouse, and
would be presented to the appraisal district. The district would then list
the co-owners identified in the Affidavit on the tax account. It is the
responsibility of those co-owners to pay the property taxes when due.
If your grandfather’s children fail to take legal action to clarify
who owns the property, the taxing authority will eventually file suit to
collect the taxes. There will be issues over who should be named in the
collection suit (which a court will have to address) but eventually when
the issues are clarified, the taxes must be paid or the authority can
foreclose on the house and land for back taxes. It is in the best interest
of your grandfather’s children to take action before collection action is
started by the authority.
Your grandfather could have avoided all
of these issues by selecting one person to handle his affairs after his
demise. In a Will, he could have nominated an Executor (even you, his
grandchild) who would get court permission to administer the estate. The
Executor would keep the taxes current. The Executor would follow your
grandfather’s instructions and either 1) sell the house, dividing the
proceeds among his heirs, or 2) distribute ownership to the heirs he
selected in his Will.
Your grandfather probably worked very hard
for many years to pay his mortgage and maintain his home. The cost of a
Will would have been minimal, probably less than the cost of one payment
on his mortgage (and he likely made about 360 payments on his mortgage).
The fact that he died without a Will is just irresponsible, and has thrown
his family into disarray.
Don’t let this happen to your own
family. Preparing a Will is not a bad omen. Rather, it is a loving and
responsible act that protects your family and protects the assets you
worked so hard to afford. If you have been responsible and already have a
Will (good job!) then review it now. Has your family changed? Do you have
any new grandchildren or great-grandchildren who you want to include? Talk
to your lawyer to ensure your Will reflects your current wishes based on
the composition of your family today (not as it was a decade ago when you
signed the Will).