A Will, a Probated Will and Your House, The issues you can avoid.
Who REALLY Owns Your House?
We get a call from someone whose spouse has just died without a Will. They had a home that they purchased during the marriage. Maybe they have a lot of other assets and maybe the home is pretty much all there is. One other thing, the spouse had one of more children from a prior marriage. It happens ALL of the time. They do not realize without a Will or Probate it may not be your house.
The surviving spouse just wants to know one thing: “How do I get the house in my own name?”
Unfortunately, he or she is in for a rude awakening.
If there is no Will, then the couple’s property passed according to the law set out in the Texas Estates Code. That law provides, among other things, that if the deceased spouse had any children with someone who is not the surviving spouse, then the community property of the couple goes to the deceased spouse’s children, including both the children that he or she had with the surviving spouse and those with the other parent.
The surviving spouse only owns one-half of the house!!! And any other community property such as their bank accounts and savings.
There are other rules for the distribution of separate property (the kids get most of that, also) and property that has a beneficiary designation.
This is not an uncommon thing; we see it all the time. And, we are the ones who have to deliver the bad news. That is never fun.
So, what do you do about it? Easy, if the person has a Will then their property goes according to the Will. That way, if mom wants to leave everything to the kids she can, but if she wants to leave it all (or some of it) to her husband, then she can do that, also.
And, equally important, the Will must be probated. This is the other thing that we see frequently. A spouse leaves a Will that gives everything to the surviving spouse, but the Will is never probated. Generally, only the original of the Will can be probated and the Will generally must be probated within five years of death.
Assume that the wife has died. Five years after her death, the husband tries to sell the property. The title company tells him that it is still in his name and his wife’s name. Imagine his disappointment when he learns that it is too late to probate the Will and (to use the above example) the wife’s kids from a previous marriage are his “partners” in the house.
So, to sum it up, these problems would have been resolved if the couple each had Wills AND after the death of the first one, his or her Will was properly probated.