Dear Mr. Premack: Our father died in the 70's and no legal action was taken. Our mother continued to live in their home property with the minor children and made the mortgage payments. This was the only marriage for either of them, and all their children are from this marriage. Our mother recently died. Did our father's share automatically pass to our mother? What happens when it comes time to sell? - KBS
The time frame of a person's death determines what law we need to apply. Your father died in the 1970's either without a Will or no action was taken in court related to his Will. The law in effect when he died is different than the law which is in effect now. Regardless, the law in the 1970's determines what happened to his part of the house.
The old law stated that when either spouse died without a probated Will (or other arrangement like a trust) the deceased spouse's half interest in the house passed to the children. The law was changed in 1993 to say that when all the children were from this marriage, the deceases spouse's half interest in the house passed to the surviving spouse.
Since the 1970's law applies to your father's half, upon his death the minor children (who are now adults) became owners of half the house. The problem is that there is no legal evidence in the real property records of what happened. A stranger to the situation, like someone who may want to buy the house now, has no way of knowing who has the legal right to sell the house.
When you mother died (again, without a Will or without action taken in court related to her Will) state law in effect on the date of her death left her share of the house to her children. But again, there is no legal evidence in the real property records of the facts for a stranger (buyer) to rely upon.
So now, the right actions to take are 1) An Affidavit of Heirship on your father's estate to declare who inherited his share per state law when he died, and then 2) Probate of your mother's Will - or if she had no Will and did leave debt, then court administration of her estate along with seeking a court order declaring the identity of her heirs. If she had no debt and no Will, it may be possible to use an Affidavit of Heirship in her estate as well.
No one is going to buy the house (and spend their hard-earned money) unless they have a guarantee that they'll fully own the house after paying for it. That guarantee comes from 1) knowing the facts and thus dealing with the true owners, and 2) paying for title insurance that guarantees good title. The title insurance companies do not want to pay claims, so they decline to issue insurance until all of the mysteries surrounding the true legal owners are solved. You need to consult with a qualified Probate Attorney for assistance, which is a service that our office provides. Visit our website at www.Premack.com to schedule a video consultation.
Paul Premack, JD, CELA, The Premack Law Office
Certified as an Elder Law Attorney by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. Licensed to practice law in Texas and Washington State
Posted on 7/11/2022