If my mom died 3 weeks ago, how can I claim what’s in her safe deposit box?

She had a safe deposit box at the bank but she had no Will. My dad is still living but they weren’t legally married.

Asked on November 1, 2015 under Estate Planning, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Generally....If your mom did not have a will and the heirs cannot agree on how to proceed, then you would need to seek a probate of the estate.  You can also retain a probate attorney to see if the heirs would be willing to participate in a mediation-- which could potentially be cheaper and quicker than a formal probate.  Probate tends to be a bit pricy-- so many people use affidavits of heirships in Texas-- but these only work when everyone is in agreement. 
The main issue you will have is who will be considered an "heir."  Your simplings are certainly heirs because they are her children.  Your dad is a different issue.  If he is deemed a common law husband, then he would potentially be an heir entitled to a portion of the estate.  If your dad was just a live-in boyfriend or fiance, then he would not be an heir.  Common marriages require three components:  an agreement to be married, a holding out (telling other people they were married), and cohabitation.  Texas law requires all three.  Just because they lived together did not automatically convert them to man and wife. 


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