San Antonio Express-News MySA.com Copyright 2011, Paul Premack
August 12, 2011
A tale of two
houses, two parents and five daughters
Dear Mr. Premack: My parents were always married to each other (no
divorces) and had five daughters. Both parents are now deceased. Both died
without wills. After father died, mother deeded the house we grew up in to
my third sister. I feel the house should be divided between the five of
us. I don't think that if something happened to my sister the house should
go to her husband. Second, my fourth sister gave my parents a house and
now she wants it back. My parents paid all the expenses for years
(property taxes, insurance, upgrades, repairs, etc.). That sister also
cleaned out my mother's bank account and took all her legal and personal
papers. Both parents always said whatever we leave after we are gone is to
be divided equally between the five of you. Is there anything we can do to
make sure everything is divided equally? - AKRP
Your parents made
an all-too-common legal mistake: they spoke about their intent to be even
handed but did not take the proper legal actions to see that their intent
would be carried out. They died without Wills. Had they just made a
legally binding estate plan, all of the divisive issues you discuss could
have been solved.
As you may have read in many of my prior
columns, when a person dies without a binding estate plan, the Texas laws
of intestacy determine who receives the assets. Since your parents had
only one marriage and all children were from that marriage, the law says
your mother received fully ownership of all community property (like the
house in which you were raised). Your mother should have seen a lawyer to
be sure that the title shift to her was properly documented, and may have
done so at the time she deeded the house to daughter #3.
that house to belong to all five daughters, because your parents always
said that “whatever we leave after we are gone” goes to all five.
Technically, your mother has honored that intent. How? She was owner of
that house after your father died. She gifted it to daughter #3 while she
was still alive. She therefore did not own that house on the date of her
death, and it is not part of “whatever we leave after we are gone”. A
lifetime transfer by the owner is a valid disposition of the asset. Sister
#3 owns it, and it will pass according to whatever legally binding estate
plan she makes (she can indeed legally give it to her husband).
What about the house that daughter #4 generously gave to your parents, but
feels should be returned to her? If she deeded the house to them, she has
no legal right to its return. If she had wanted it to be returned, then
instead of deeding full ownership to your parents she could have
transferred only a “life estate” to them. Under that arrangement, they
would have lived there for the rest of their lives, treated it as their
homestead, and paid all expenses. But the moment that both parents were
deceased, their rights would have expired and title would return to
Because your sister did not reserve those rights,
your mother was full owner of that house at the moment of her death.
Texas’ intestacy law says that title to that house now passes in equal
shares to the surviving children. Legal action is needed to properly
document the title shift. Hire a probate attorney. Depending on the
circumstances, a “small estate affidavit” may be the correct legal tool to
transfer title. Otherwise, your mother’s estate could end up as a
dependent supervised administration before the local probate court.
What about daughter #4 emptying out the bank account and taking your
mother’s papers. We must ask if she was legally authorized. It may be that
your mother listed #4 on that account “with right of survivorship” or as
pay-on-death beneficiary. If so, she had the legal right to claim the
account. If not, you can seek to become dependent administrator of the
estate and seek a court order forcing your sister to return the funds and
the paperwork she took.
As I said earlier, your parents could
have made a legally binding plan to avoid this strife. For instance, they
could have established a living trust. In it, they could have specified
that after one of them died, the survivor could not sell or give away the
house (like your mother did), but that it would pass equally to all five
daughters. They could have placed the second house and all their accounts
into the trust, and elected an independent third party to see that the
assets were divided into five equal shares. Instead, they raised your
expectations with nonbinding verbal assurances, leaving their daughters to
fight over the assets. So, gentle readers, will you also default to
leaving your families in this awful situation, or have you made a binding
legal estate plan which you have kept up-to-date?
Disclaimer: This column answers a specific
legal question asked by an individual in Texas. The answer may or may
not match your individual situation. Be careful not to treat this
column as specific legal advice, as it may not meet your individual
needs. It may give you a solid basis for discussion with your own
You should consult with your personal
attorney before you take any action on this or any legal issue.
Also, please be aware that laws change, so this column is valid only
as of the date it was published. This communication does not create an
attorney-client relationship between the author and the reader.
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Paul Premack is Certified as an Elder Law
Attorney ( CELA ) by the National Elder Law Foundation as accredited by
the Texas Board of Legal Specialization and tthe ABA. He is licensed to pracice law in Texas.
Benjamin Premack holds a JD and a Masters Degree in International
Affairs, and is licensed to practice law in Washington State and in