Ownership of House in Texas

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Ownership of House in Texas

My father has been diagnosed with dementia and is currently placed in hospice.

My mother, sister and I who all reside in the house, know of a will that was
written by him years ago leaving the property to my mother but was never filed
with the court and can’t be found at this moment.

We are trying to brace for the worst case scenario if we are unable to produce
the will after his passing.

My father had 3 children from his previous spouse before divorcing her and
remarrying my mother. My father owned the property prior to marrying my mother
and his ex-wife has been deceased for quite awhile.

With 3 children from his first marriage, 2 children from his second marriage
and a spouse left behind, what is to become of the property in Texas if a will
cannot be produced?

Asked on December 11, 2017 under Estate Planning, Texas

Answers:

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

Answered 3 years ago | Contributor

If no will is found, then one half of the estate will pass to your mother and one-half will pass to the step-children (to be divided among the three step-kids).  However, when a house is also the marital homestead where the surviving spouse would have otherwise resided, then they can make an application with the probate courts to be granted what is called a "life estate" in the residence--- because of the status of the residence as a "homestead."  Basically, this means your mom gets exclusive use of the house until her passing and the other kids can't touch it until then.  When your mom passes, then you will get her 1/2 interest (or whatever she wills you) and the step-kids will get their 1/2 interest.
If you mom has not already homesteaded the house, she needs to do that before your dad passess.  This is done via the tax rolls.  Most likely she has already done this....it is usually only an issue when the spouses have more than one house.  
My main suggestion, however, is to look for the will. That will make the process easier and simpler.  More than likely, he had a law firm draft the will.  Most law firms will keep copies of the wills they execute in their office.  So, you may want to look back at old records, see if you can find that law firm, and then determine if they did, in fact, keep a copy.  


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