Dear Mr. Premack: How do I go about keeping my home now that my husband has passed? His father’s brother is trying to bully me into signing papers, and is telling me I don’t have to pay taxes anymore. He wants me to pay rent to him. The home I live in was my husband’s – it was left to him by his parents. What can I do? – P.S.
The first thing that you must do is investigate the true status of your husband’s interest in this house. You should hire a qualified attorney to assist, since this involves the very important issue of whether you own and can continue to live in the home.
You believe that your husband inherited the home from his parents. If so, there would be legal documents to establish his ownership rights. At the courthouse, look for a probated Will and a deed from the estate of his second parent to die. Your rights depend first on the nature of your husband’s rights, and second on the actions your husband took to pass those rights to you. If your investigation finds your husband became full owner of the house when his parents died, then your husband had the authority to leave his interest to anyone he designated. Did he leave a last will and testament?
If yes, your husband’s will dictates who received title to the house upon your husband’s death because the house was your husband’s separate property. It is conceivable that in your husband’s will, he left the house to his father’s brother. To show valid ownership, Uncle must have the will admitted to probate and must change the county’s deed records.
If no (your husband died without a will) then the state’s law of intestacy determines who received the house. Under Texas law, if your husband had no children, or all the children were from his marriage to you, then you received the house. If he had children from a prior marriage, then they received the house (and you got a partial “life estate” in the house). If he had no children then you got half the house and the other half passed to your husband’s parents if living, otherwise to your husband’s siblings. If he had no surviving siblings, half passed to his nieces and nephews. If there are none, then half passes to his grandparents, and if they are not living, then to their descendants (so his Uncle is way down on the list, but could have received one-half of the house).
Even if Uncle legally owns the entire house, under Texas law you still have homestead rights unless you waived those rights voluntarily in a prenuptial agreement or a postnuptial marital property agreement. If you have not waived those rights, you may legally occupy, use and enjoy the homestead until you die or until you voluntarily end your occupancy of the home.
Can Uncle charge you rent? No. Your legal right to use and enjoy the homestead entitles you to live there rent-free. On the other hand, if there is a mortgage on the house, you are required to pay the interest portion of the mortgage while the owner (Uncle) is required to pay the principal portion of the mortgage. Uncle is also required to pay for the casualty insurance on the home. If it burns down, he is the one who is losing the value of the home, so if he wants to cover that risk then he has to pay for the insurance. You pay the annual property taxes and you pay for routine upkeep and maintenance of the home. Any upkeep that is not routine – capital repairs like replacing the air conditioner or replacing the roof – is the financial obligation of the home’s owner (Uncle).
Again, hire a qualified attorney to help you investigate the facts and to understand your legal rights. Do not sign anything Uncle is pressing on you until you have consulted with your own legal counsel.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, May 5, 2014
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