Dear Mr. Premack: My husband and I are in our second marriages. He
has children from his first wife, and he made a will leaving everything to
them. He was in the process of changing the will to leave everything to me
when he died rather suddenly in June 2012. His old will still applies, and
it names my stepson (who is an attorney in Austin) as Executor. Almost all
our finances had right of survivorship to me, so the house is really the
only thing available to probate in the estate. His son has not probated
the will and I think he is not going to do it. He said if he does not
probate it in 7 months, the house will automatically be mine. I just want
to be sure I do not need to press the issue of probate so that I don’t
lose my house completely. Thank you. – NBJ
As the surviving
spouse, you need to determine the extent of your rights in the house. To
do so, you must look at the facts to decide whether the house was
community property or was separate property (either yours or your
husband’s). Separate property is legally defined as a) any item a person
owned before the marriage commenced, b) any item a person inherited or
received as a gift at any time, or c) any item which has been defined as
separate property in a written contract (like a prenuptial contract).
This was a second marriage for both of you, and your husband has a
son in the legal profession. It is quite possible that you and your
husband signed a prenuptial agreement. The terms of the agreement must be
followed. There are three possible conclusions, depending on what actions
you and your husband took before or during your marriage:
house is your separate property because of a-b-or-c above. If so, your
husband’s will has no impact on your rights. You own the house already.
Probate is not necessary, and his son has no reason to become Executor.
2) The house is your husband’s separate property because of a-b-or-c
above. If so, title passes according to his will (that is, to his
children). Regardless, Texas law gives you as surviving spouse special
homestead occupancy rights. Even if his children own the house, you have
the right to live there until you volunteer to move elsewhere. When you do
move, they can sell the house and keep the money.
3) The house is
community property, because the prenup says so, or because there was no
prenup and you purchased the house together using community funds like
income from work. If so, you own a one-half interest already. Your husband
owns the other half, and it passes to his children according to his will.
As before, you have special homestead occupancy rights under Texas law.
A will, however, is only effective if it is admitted to probate
within four years of the date of his death. If your step-son fails to act
in that time frame, your husband is treated as though no will existed. In
that case, 1) if the house was community property, then you keep your half
and his kids get his half, or 2) if the house was separate property then
under Texas law you get a “one-third life estate” and his kids get all
other ownership interests in the house. And as always, you have special
homestead occupancy rights under Texas law.
Note that I did not
say “in 7 months the house will be yours”. Why? Because although your
step-son is an attorney, his statement is completely wrong. There is
nothing in the intestacy law that sets a seven month limit, and there is
no law that would give the house to you under the factual circumstances
you presented. If the will is probated, his children get your husband’s
share of the house; you just have homestead occupancy rights. If the will
is not probated, his children get your husband’s share of the house; you
just have homestead occupancy rights and a one-third life estate which
expires when you die.
What action should you take? Now that you
have this preliminary analysis you should seek personal legal advice from
an experienced probate attorney. Don’t rely on advice from your step-son,
who may be well intentioned but is poorly informed about this area of the