This column first appeared in the San Antonio Express News and its MySA.com website on April 7, 2015.
Dear Mr. Premack: My mother died July 1989 without a Will. My father died January 2015 with a Will leaving his assets to his children. We are trying to sell his house, but have been told, because we have one sibling who will not sign paperwork, that we cannot sell. Would the community property not belong to my father? Wouldn’t father’s Will give us the legal rights we now need? CVW
You would think that your father’s Will would take care of this situation, but it does not. Why? Because Texas law has not always been the way it is today. Back in 1989 when your mother died intestate, Texas law made the assumption that the surviving spouse would get by with the one-half of the community property the surviving spouse already owned. That law said that when one spouse died intestate, her half of the community property (including her half of the house) passed in equal portions to the children.
So, legally, her half of the house did not pass to your father. Consequently, since 1989 your father has owned only his half interest in the home. The other half has been owned in equal shares by the children since 1989.
The legislature saw the fundamental unfairness of that result in 1992. Effective September 1992 and from then on, when a spouse dies intestate her share of the homestead passes to the surviving spouse. Sadly, your mother died while the old law was in effect, and the 1992 change had no impact on your family’s situation.
Of course, it would have been wise for your mother to have made a Will leaving her assets to your father. She would have then avoided the results of the 1989 law because her Will would have taken priority. Your father would have then consulted with legal counsel about probate of the Will so that title would have be transferred solely into his name. Later, when your father died, his Will would have been probated so that his Executor could take action to sell the house. Approval of the children would not have been necessary, but after the sale the net proceeds from the sale would have to be divided among the children as instructed in his Will.
Alternatively, when your mother died intestate back in 1989 your father could have consulted with legal counsel about the impact of the law. He could have asked all of the children to voluntarily deed their shares back to him. They would not have been required to do so, but may have been more likely to help when it was solely for his benefit (as opposed to waiting until he died and arguing among the children, which is what happened).
Instead, now one of your siblings refuses to cooperate in selling the house. Even if your father’s Will named you as Executor and was probated, his Will (and your authority as Executor) extends only to the one-half of the house which he owned at the time of his death. The other half is still owned by all the siblings, who are under no legal obligation to agree to the sale. That is why the rights you may have under your father’s Will did not solve your problem.
What can you do now? Continue to discuss the situation among your siblings, and maybe minds will be changed. Talk about how all of you are responsible for the property taxes, for the insurance, and for maintaining the property. Start to ask each of your siblings to contribute their required share of the expenses and it is possible that selling the house may become more attractive to everyone. If that does not work you can hire legal counsel to file a “partition lawsuit” to have a Judge order that the property be sold, but it is a slow and expensive legal procedure.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.