What to do if my husband passed away several years ago without a Will?

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What to do if my husband passed away several years ago without a Will?

We lived in a community property state had joint bank accounts; he also had a vehicle with a loan. I used money saved in our joint savings for burial expenses and the life insurance money (I had life insurance on him through my employer) to pay for the vehicle. The only debt we had other than the vehicle was home mortgage. The deed to the house is still in both of our names, although the loan is in my name only. His 3 children by another marriage signed the vehicle over to me but refuse to sign over the house. What recourse do I have? I don’t plan to sell the house any time soon but plan remodeling.

Asked on January 6, 2014 under Estate Planning, Texas

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

When there is no will to name an executor, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone based on that priority list. Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members.

Who Gets What: The Basic Rules of Intestate Succession

Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners (in states where that's an option), and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, commonly the surviving spouse gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse or children. In the rare event that no relatives at all can be found, the state takes the assets.

All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, someone who criminally caused the death of the deceased person is almost never allowed to profit from the death. And, in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child. (Learn more about relatives' rights to claim parts of an estate in Nolo's article Inheritance Rights.)

Understanding Key Terms in Intestate Succession

Intestate succession laws refer to groups of people such as "children" and "issue." You may think you know just what "children" means, but don't be too sure until you check your state's laws. It's not always obvious.

Spouse

To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death. Usually, it's clear who is and isn't married. But not always.

  • Legal separation or pending divorce. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse.
  • Common-law marriage. A few states allow common-law marriages (in which a man and a woman who never went through a marriage ceremony can be considered legally married under certain circumstances). Generally, to create a common-law marriage, the couple must live together, intend to be married, and present themselves to the world as married. Check your state law to see whether your state recognizes common-law marriage and, if so, under what circumstances.
  • Same-sex marriage. There is considerable confusion over whether courts will recognize a same-sex partner as a surviving spouse. Couples who marry and live in a state that allows same-sex marriage should not have a problem. But if one spouse dies in a state that doesn't recognize same-sex marriage, the courts will have to decide the issue. (For more information see Nolo's article Recognition of Existing Same-Sex Marriages.)

Children and Issue

The simple term "children" can mean different things to different people -- and under different laws. Many state statutes use the term "issue" to describe who should inherit in the absence of a will, meaning direct descendants of the deceased person (children, grandchildren, and so on).

I suggest that you consult with a Wills and trust attorney in your locality to file an intestacy action. One can be found on attorneypages.com.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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