Can we sign an ownership of heir?
Full Question:
My mother in law passed away in February 2007, she left no will or estate, her most valuable property was a scooter chair, that she used to get around.
When she passed we brought that chair home with us, my husbands aunt is taking us to court for that chair. Can she legally take that chair? Or can we sign a ownership of heir.
05/21/2007 |
Category: Real Property |
State: Texas |
#5412
Answer:
The following are TX statutes:
§ 38. PERSONS WHO TAKE UPON INTESTACY.
(a) Intestate
Leaving No Husband or Wife. Where any person, having title to any
estate, real, personal or mixed, shall die intestate, leaving no
husband or wife, it shall descend and pass in parcenary to his
kindred, male and female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to his
father and mother, in equal portions. But if only the father or
mother survive the intestate, then his estate shall be divided into
two equal portions, one of which shall pass to such survivor, and
the other half shall pass to the brothers and sisters of the
deceased, and to their descendants; but if there be none such, then
the whole estate shall be inherited by the surviving father or
mother.
3. If there be neither father nor mother, then the whole of
such estate shall pass to the brothers and sisters of the intestate,
and to their descendants.
4. If there be none of the kindred aforesaid, then the
inheritance shall be divided into two moieties, one of which shall
go to the paternal and the other to the maternal kindred, in the
following course: To the grandfather and grandmother in equal
portions, but if only one of these be living, then the estate shall
be divided into two equal parts, one of which shall go to such
survivor, and the other shall go to the descendant or descendants of
such deceased grandfather or grandmother. If there be no such
descendants, then the whole estate shall be inherited by the
surviving grandfather or grandmother. If there be no surviving
grandfather or grandmother, then the whole of such estate shall go
to their descendants, and so on without end, passing in like manner
to the nearest lineal ancestors and their descendants.
(b) Intestate Leaving Husband or Wife. Where any person
having title to any estate, real, personal or mixed, other than a
community estate, shall die intestate as to such estate, and shall
leave a surviving husband or wife, such estate of such intestate
shall descend and pass as follows:
1. If the deceased have a child or children, or their
descendants, the surviving husband or wife shall take one-third of
the personal estate, and the balance of such personal estate shall
go to the child or children of the deceased and their descendants.
The surviving husband or wife shall also be entitled to an estate
for life, in one-third of the land of the intestate, with remainder
to the child or children of the intestate and their descendants.
2. If the deceased have no child or children, or their
descendants, then the surviving husband or wife shall be entitled
to all the personal estate, and to one-half of the lands of the
intestate, without remainder to any person, and the other half
shall pass and be inherited according to the rules of descent and
distribution; provided, however, that if the deceased has neither
surviving father nor mother nor surviving brothers or sisters, or
their descendants, then the surviving husband or wife shall be
entitled to the whole of the estate of such intestate.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.
§ 39. NO DISTINCTION BECAUSE OF PROPERTY'S SOURCE. There
shall be no distinction in regulating the descent and distribution
of the estate of a person dying intestate between property which may
have been derived by gift, devise or descent from the father, and
that which may have been derived by gift, devise or descent from the
mother; and all the estate to which such intestate may have had
title at the time of death shall descend and vest in the heirs of
such person in the same manner as if he had been the original
purchaser thereof.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.
§ 40. INHERITANCE BY AND FROM AN ADOPTED CHILD. For
purposes of inheritance under the laws of descent and distribution,
an adopted child shall be regarded as the child of the parent or
parents by adoption, such adopted child and its descendants
inheriting from and through the parent or parents by adoption and
their kin the same as if such child were the natural child of such
parent or parents by adoption, and such parent or parents by
adoption and their kin inheriting from and through such adopted
child the same as if such child were the natural child of such
parent or parents by adoption. The natural parent or parents of
such child and their kin shall not inherit from or through said
child, but, except as provided by Section 162.507(c), Family Code,
the child shall inherit from and through its natural parent or
parents. Nothing herein shall prevent any parent by adoption from
disposing of his property by will according to law. The presence of
this Section specifically relating to the rights of adopted
children shall in no way diminish the rights of such children, under
the laws of descent and distribution or otherwise, which they
acquire by virtue of their inclusion in the definition of "child"
which is contained in this Code.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1989, 71st Leg., ch. 375, § 34, eff. Sept. 1, 1989.
Amended by Acts 2005, 79th Leg., ch. 169, § 2, eff. Sept. 1,
2005.
§ 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO
INHERIT.
(a) Persons Not in Being. No right of inheritance shall
accrue to any persons other than to children or lineal descendants
of the intestate, unless they are in being and capable in law to
take as heirs at the time of the death of the intestate.
(b) Heirs of Whole and Half Blood. In situations where the
inheritance passes to the collateral kindred of the intestate, if
part of such collateral be of the whole blood, and the other part be
of the half blood only, of the intestate, each of those of half
blood shall inherit only half so much as each of those of the whole
blood; but if all be of the half blood, they shall have whole
portions.
(c) Alienage. No person is disqualified to take as an heir
because he or a person through whom he claims is or has been an
alien.
(d) Convicted Persons and Suicides. No conviction shall
work corruption of blood or forfeiture of estate, except in the case
of a beneficiary in a life insurance policy or contract who is
convicted and sentenced as a principal or accomplice in wilfully
bringing about the death of the insured, in which case the proceeds
of such insurance policy or contract shall be paid as provided in
the Insurance Code of this State, as same now exists or is hereafter
amended; nor shall there be any forfeiture by reason of death by
casualty; and the estates of those who destroy their own lives
shall descend or vest as in the case of natural death.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1969, 61st Leg., p. 1922, ch. 641, § 2, eff. June 12, 1969.
§ 42. INHERITANCE RIGHTS OF CHILDREN.
(a) Maternal
Inheritance. For the purpose of inheritance, a child is the child
of his biological or adopted mother, so that he and his issue shall
inherit from his mother and from his maternal kindred, both
descendants, ascendants, and collaterals in all degrees, and they
may inherit from him and his issue.
(b) Paternal Inheritance. (1) For the purpose of
inheritance, a child is the child of his biological father if the
child is born under circumstances described by Section 160.201,
Family Code, is adjudicated to be the child of the father by court
decree as provided by Chapter 160, Family Code, was adopted by his
father, or if the father executed an acknowledgment of paternity as
provided by Subchapter D, Chapter 160, Family Code, or a like
statement properly executed in another jurisdiction, so that he and
his issue shall inherit from his father and from his paternal
kindred, both descendants, ascendants, and collaterals in all
degrees, and they may inherit from him and his issue. A person
claiming to be a biological child of the decedent, who is not
otherwise presumed to be a child of the decedent, or claiming
inheritance through a biological child of the decedent, who is not
otherwise presumed to be a child of the decedent, may petition the
probate court for a determination of right of inheritance. If the
court finds by clear and convincing evidence that the purported
father was the biological father of the child, the child is treated
as any other child of the decedent for the purpose of inheritance
and he and his issue may inherit from his paternal kindred, both
descendants, ascendants, and collaterals in all degrees, and they
may inherit from him and his issue. This section does not permit
inheritance by a purported father of a child, whether recognized or
not, if the purported father's parental rights have been
terminated.
(2) A person who purchases for valuable consideration any
interest in real or personal property of the heirs of a decedent,
who in good faith relies on the declarations in an affidavit of
heirship that does not include a child who at the time of the sale or
contract of sale of the property is not a presumed child of the
decedent and has not under a final court decree or judgment been
found to be entitled to treatment under this subsection as a child
of the decedent, and who is without knowledge of the claim of that
child, acquires good title to the interest that the person would
have received, as purchaser, in the absence of any claim of the
child not included in the affidavit. This subdivision does not
affect the liability, if any, of the heirs for the proceeds of any
sale described by this subdivision to the child who was not included
in the affidavit of heirship.
(c) Homestead Rights, Exempt Property, and Family
Allowances. A child as provided by Subsections (a) and (b) of this
section is a child of his mother, and a child of his father, for the
purpose of determining homestead rights, distribution of exempt
property, and the making of family allowances.
(d) Marriages Void and Voidable. The issue of marriages
declared void or voided by annulment shall be treated in the same
manner as issue of a valid marriage.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1977, 65th Leg., p. 762, ch. 290, § 1, eff. May 28, 1977;
Acts 1979, 66th Leg., p. 40, ch. 24, § 25, eff. Aug. 27, 1979;
Acts 1979, 66th Leg., p. 1743, ch. 713, § 5, eff. Aug. 27, 1979 ;
Acts 1987, 70th Leg., ch. 464, § 1, eff. Sept. 1, 1987; Acts
1989, 71st Leg., ch. 375, § 35, eff. Sept. 1, 1989; Acts 1997,
75th Leg., ch. 165, § 7.54, eff. Sept. 1, 1997; Acts 1997, 75th
Leg., ch. 1302, § 4, eff. Sept. 1, 1997; Acts 2001, 77th Leg.,
ch. 821, § 2.18, eff. June 14, 2001.
§ 43. DETERMINATION OF PER CAPITA AND PER STIRPES
DISTRIBUTION. When the intestate's children, descendants,
brothers, sisters, uncles, aunts, or any other relatives of the
deceased standing in the first or same degree alone come into the
distribution upon intestacy, they shall take per capita, namely:
by persons; and, when a part of them being dead and a part living,
the descendants of those dead shall have right to distribution upon
intestacy, such descendants shall inherit only such portion of said
property as the parent through whom they inherit would be entitled
to if alive.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1991, 72nd Leg., ch. 895, § 3, eff. Sept. 1, 1991.
§ 44. ADVANCEMENTS.
(a) If a decedent dies intestate as
to all or a portion of the decedent's estate, property the decedent
gave during the decedent's lifetime to a person who, on the date of
the decedent's death, is the decedent's heir, or property received
by a decedent's heir under a nontestamentary transfer under Chapter
XI of this code is an advancement against the heir's intestate
share only if:
(1) the decedent declared in a contemporaneous writing or
the heir acknowledged in writing that the gift or nontestamentary
transfer is an advancement; or
(2) the decedent's contemporaneous writing or the heir's
written acknowledgment otherwise indicates that the gift or
nontestamentary transfer is to be taken into account in computing
the division and distribution of the decedent's intestate estate.
(b) For purposes of Subsection (a) of this section, property
that is advanced is valued at the time the heir came into possession
or enjoyment of the property or at the time of the decedent's death,
whichever occurs first.
(c) If the recipient of the property fails to survive the
decedent, the property is not taken into account in computing the
division and distribution of the decedent's intestate estate,
unless the decedent's contemporaneous writing provides otherwise.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1993, 73rd Leg., ch. 846, § 4, eff. Sept. 1, 1993.
§ 45. COMMUNITY ESTATE.
(a) On the intestate death of one
of the spouses to a marriage, the community property 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 surviving children and descendants of the deceased
spouse are also children or descendants of the surviving spouse.
(b) On the intestate death of one of the spouses to a
marriage, if a child or other descendant of the deceased spouse
survives the deceased spouse and the child or descendant is not 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 children or descendants of the deceased
spouse. The descendants shall inherit only such portion of said
property to which they would be entitled under Section 43 of this
code. In every case, the community estate passes charged with the
debts against it.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1991, 72nd Leg., ch. 895, § 4, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 846, § 33, eff. Sept. 1, 1993.
§ 46. JOINT TENANCIES.
(a) If two or more persons hold an
interest in property jointly, and one joint owner dies before
severance, the interest of the decedent in the joint estate shall
not survive to the remaining joint owner or owners but shall pass by
will or intestacy from the decedent as if the decedent's interest
had been severed. The joint owners may agree in writing, however,
that the interest of any joint owner who dies shall survive to the
surviving joint owner or owners, but no such agreement shall be
inferred from the mere fact that the property is held in joint
ownership.
(b) Subsection (a) does not apply to agreements between
spouses regarding their community property. Agreements between
spouses regarding rights of survivorship in community property are
governed by Part 3 of Chapter XI of this code.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1961, 57th Leg., p. 233, ch. 120, § 1, eff. May 15, 1961;
Acts 1969, 61st Leg., p. 1922, ch. 641, § 3, eff. June 12, 1969;
Acts 1981, 67th Leg., p. 895, ch. 319, § 1, eff. Sept. 1, 1981;
Acts 1987, 70th Leg., ch. 678, § 2; Acts 1989, 71st Leg., ch.
655, § 1, eff. Aug. 28, 1989.
§ 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.
(a) Survival of Heirs. A person who fails to survive the decedent by 120 hours is
deemed to have predeceased the decedent for purposes of homestead
allowance, exempt property, and intestate succession, and the
decedent's heirs are determined accordingly, except as otherwise
provided in this section. If the time of death of the decedent or of
the person who would otherwise be an heir, or the times of death of
both, cannot be determined, and it cannot be established that the
person who would otherwise be an heir has survived the decedent by
120 hours, it is deemed that the person failed to survive for the
required period. This subsection does not apply where its
application would result in the escheat of an intestate estate.
(b) Disposal of Community Property. When a husband and wife
have died, leaving community property, and neither the husband nor
wife survived the other by 120 hours, one-half of all community
property shall be distributed as if the husband had survived, and
the other one-half thereof shall be distributed as if the wife had
survived. The provisions of this subsection apply to proceeds of
life or accident insurance which are community property and become
payable to the estate of either the husband or the wife, as well as
to other kinds of community property.
(c) Survival of Devisees or Beneficiaries. A devisee who
does not survive the testator by 120 hours is treated as if he
predeceased the testator, unless the will of the decedent contains
some language dealing explicitly with simultaneous death or deaths
in a common disaster, or requiring that the devisee survive the
testator or survive the testator for a stated period in order to
take under the will. If property is so disposed of that the right of
a beneficiary to succeed to any interest therein is conditional
upon his surviving another person, the beneficiary shall be deemed
not to have survived unless he or she survives the person by 120
hours. However, if any interest in property is given alternatively
to one of two or more beneficiaries, with the right of each to take
being dependent upon his surviving the other or others, and all
shall die within a period of less than 120 hours, the property shall
be divided into as many equal portions as there are beneficiaries,
and those portions shall be distributed respectively to those who
would have taken in the event that each beneficiary had survived.
(d) Joint Owners. If any real or personal property,
including community property with a right of survivorship, shall be
so owned that one of two joint owners is entitled to the whole on the
death of the other, and neither survives the other by 120 hours,
these assets shall be distributed one-half as if one joint owner had
survived and the other one-half as if the other joint owner had
survived. If there are more than two joint owners and all have died
within a period of less than 120 hours, these assets shall be
divided into as many equal portions as there are joint owners and
these portions shall be distributed respectively to those who would
have taken in the event that each joint owner survived.
(e) Insured and Beneficiary. When the insured and a
beneficiary in a policy of life or accident insurance have died
within a period of less than 120 hours, the insured shall be deemed
to have survived the beneficiary for the purpose of determining the
rights under the policy of the beneficiary or beneficiaries as
such. The provisions of this subsection shall not prevent the
application of subsection (b) above to the proceeds of life or
accident insurance which are community property.
(f) Instruments Providing Different Disposition. When
provision has been made in the case of wills, living trusts, deeds,
or contracts of insurance, or any other situation, for disposition
of property different from the provisions of this Section, this
Section shall not apply.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1965, 59th Leg., p. 279, ch. 119, § 1, eff. Aug. 30, 1965;
Acts 1979, 66th Leg., p. 1743, ch. 713, § 6, eff. Aug. 27, 1979;
Acts 1993, 73rd Leg., ch. 846, § 5, eff. Sept. 1, 1993