Can a verbal agreement over inheritance be enforced in Texas?

This column first appeared in the San Antonio Express-News on April 19, 2016.

Dear Mr. Premack: 2016-04-19Before my mother passed away she requested that her house would belong to my sister and me. Since we both had homes and her grandson did not, she said he could stay there until he either moved away or died. The verbal agreement was that he care for and pay the taxes on the home. On the tax account, the term they use for him is “life estate”, but he has not paid the taxes nor has he made any attempt to maintain the house. Circumstances have now changed and my sister wants to move into my mother’s home. What kind of legal issues do we have? Thank you – GG

The words you use give me concern. Your mother “requested” these conditions for the house. She “said” her grandson could stay there for life. The “verbal agreement” was that he would pay taxes and upkeep.

A very basic rule of Texas law is that agreements related to real property must be written and signed to be enforceable. This is called the Statute of Frauds, and is intended to avoid fraud and unconscionable verbal agreements. The law recites that any agreement that takes more than one year to perform must be in writing. Further, it requires that any agreement for the sale of real property must be in writing.

Let’s look at your situation. At some point your mother made a request about her house, and later died. She wanted the house to go to you and your sister, subject to her grandson’s occupancy right. There are only two ways for title to the house to change hands upon her death. Either a) she made a proper Will, Trust, Survivorship Deed or other binding transfer of title in writing before she died, or b) she did not sign any of those documents, so title passed on her death to her heirs at law under the Texas intestacy statutes.

If she did make a written declaration, various actions must be taken to enact that declaration. A Will must be probated in court within four years of the date of death in order to change title to real estate. A Trust must own the real estate before she died, and then the Trustee can convey title. A Survivorship Deed is effective when her death is proven to the satisfaction of a buyer and the buyer’s title insurance company. From your letter it is not apparent that any of those legal processes have happened.

But assume for a moment that her instructions were contained in a proper written Will, and that it has been probated in court. If so, her Executor would have signed a deed conveying life estate in the home to her grandson on condition that he pay the taxes and maintain the home. He has failed to do so. The individuals named in the Will as receiving the house on his death, or on his failure to meet the conditions (you and your sister), could file suit against him alleging that he has breached the terms of the conveyance. If you can provide sufficient evidence in court, you may recover title.

Conversely, assume all of your mother’s instructions were verbal. If so, title to the house passed to her intestate heirs at law. Generally, that includes 1) the surviving spouse, if any, or 2) all of her children. Since you do not identify “her grandson” as your son or as your sister’s son, the inference is that your mother had another child who is this grandson’s parent. All the children inherit, not just you and your sister.

The verbal agreement that he could live in the property was at best between you, your sister, your mother and her grandson. This omits her other children, who under intestacy became partial owners of the property when your mother died. The verbal agreement cannot be binding on them, as they were not parties to it. The verbal agreement is also void under the Statute of Frauds. So if your mother died intestate, her children should a) take legal steps like a courtroom Determination of Heirship to have title placed into their names, and b) when ownership is settled, have grandson evicted if he does not leave voluntarily.

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