Husband died 15 years ago but Will was not probated. There are children. Who owns the home?
Full Question:
Answer:
We assume that the Will is not probated and intestate law applies. Community property goes to the spouse with a few exceptions. If the home was owned by both of you and community property it goes to you. Any separate property goes 1.3 to you and 2/3 to the children. Plus, the wife receives a life estate in an separate land with remainder to the children.
We do not know if there were different laws in effect 15 years ago when your Husband died and if there were which laws apply.
As far as the home and being qualified for medicaid we cannot address the question. You would need to consult a local attorney about how to handle that. You should also consult about how to proceed in this matter.
Sec. 201.002. SEPARATE ESTATE OF AN INTESTATE. (a) If a person who dies intestate leaves a surviving spouse, the estate, other than a community estate, to which the person had title descends and passes as provided by this section.
(b) If the person has one or more children or a descendant of a child:
(1) the surviving spouse takes one-third of the personal estate;
(2) two-thirds of the personal estate descends to the person's child or children, and the descendants of a child or children; and
(3) the surviving spouse is entitled to a life estate in one-third of the person's land, with the remainder descending to the person's child or children and the descendants of a child or children.
(c) Except as provided by Subsection (d), if the person has no child and no descendant of a child:
(1) the surviving spouse is entitled to all of the personal estate;
(2) the surviving spouse is entitled to one-half of the person's land without a remainder to any person; and
(3) one-half of the person's land passes and is inherited according to the rules of descent and distribution.
(d) If the person described by Subsection (c) does not leave a surviving parent or one or more surviving siblings, or their descendants, the surviving spouse is entitled to the entire estate.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 201.003. COMMUNITY ESTATE OF AN INTESTATE. (a) If a person who dies intestate leaves a surviving spouse, the community estate of the deceased spouse passes as provided by this section.
(b) The community estate of the deceased spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(2) all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(c) If the deceased spouse is survived by a child or other descendant who is not also a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the deceased spouse's children or descendants. The descendants inherit only the portion of that estate to which they would be entitled under Section 201.101. In every case, the community estate passes charged with the debts against the community estate.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Also the limitation of probating a Will in Texas is four years. After 4 years it generally cannot be prodated.
ESTATES CODE
TITLE 2. ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY
SUBTITLE F. WILLS
CHAPTER 256. PROBATE OF WILLS GENERALLY
SUBCHAPTER A. EFFECTIVENESS OF WILL; PERIOD FOR PROBATE
Sec. 256.001. WILL NOT EFFECTIVE UNTIL PROBATED. Except as provided by Subtitle K with respect to foreign wills, a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 256.002. PROBATE BEFORE DEATH VOID. The probate of a will of a living person is void.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 256.003. PERIOD FOR ADMITTING WILL TO PROBATE; PROTECTION FOR CERTAIN PURCHASERS. (a) Except as provided by Section 501.001 with respect to a foreign will, a will may not be admitted to probate after the fourth anniversary of the testator's death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator's death.
(b) Except as provided by Section 501.006 with respect to a foreign will, letters testamentary may not be issued if a will is admitted to probate after the fourth anniversary of the testator's death.
(c) A person who for value, in good faith, and without knowledge of the existence of a will purchases property from a decedent's heirs after the fourth anniversary of the decedent's death shall be held to have good title to the interest that the heir or heirs would have had in the absence of a will, as against the claim of any devisee under any will that is subsequently offered for probate.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 20, eff. September 1, 2015.