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How to Solve the Probate Homestead Conundrum

Resolutions to the Probate Homestead Conundrum

December 10, 2020/in Probate and Probate Litigation/by Jessica Dunne and Spencer Turner

Under Texas law, a surviving spouse has the right to reside in the marital home until the surviving spouse either abandons the home or dies. But this so-called “probate homestead” right does not extinguish the ownership interests of remaindermen (co-owners, heirs, or beneficiaries) under the decedent’s will.

The responsibilities of the homestead claimant (the surviving spouse) include paying ad valorem property taxes, costs of maintenance and repair, and interest on any existing encumbrances (e.g., a mortgage), avoiding “waste” and preserving the property, and funding any permanent improvements on the property. The homestead claimant is also entitled to all fruits, rents, and revenues derived from the property. The remaindermen must maintain insurance on the property and pay the principal on any existing encumbrances, such as mortgage principal. Texas law permits the surviving spouse to sell the homestead and use the proceeds to acquire a new homestead with the same rights and obligations as before.

These dynamics can strain a relationship, particularly between a stepparent and stepchildren. To lessen the strain, Texas law does not permit remaindermen to force a partition of a probate homestead. A common resolution to this conundrum is for one party to buy out the other party’s interest in the home, if both sides are willing.

Assuming the surviving spouse is the personal representative of the decedent’s estate, another option is for the surviving spouse to request authority from the court to purchase the home from the estate. Under Texas law, a personal representative of an estate may purchase estate property if the court determines that the sale is in the estate’s best interest.

If the home needs to be sold to satisfy debt associated with the property or the decedent’s estate, the personal representative can offer to purchase the property for an amount that would satisfy the debts or by assuming the debt associated with the property itself. Some factors weighing in favor of the purchase of the property by the personal representative include, but are not limited to, co-ownership of the property by the estate and the surviving spouse, as well as probate homestead rights. Both factors can greatly diminish the marketability of the property to a third-party buyer. The court is likely to find that a purchase of the property by the personal representative is in the estate’s best interest if the proposed purchase is the only viable option for settling the debts of the estate.

The lawyers in our firm have successfully assisted individuals in negotiating a buyout of either the homestead claimant or remainderman’s interests in the property; selling the probate homestead and using the proceeds to acquire a new homestead; and obtaining court authority for the purchase of estate property by a personal representative. Should you find yourself in a probate homestead conundrum, the attorneys at Farrow-Gillespie Heath Witter are here to help you navigate a resolution.

Jessica Dunne | Farrow-Gillespie & Heath LLP

Jessica Dunne is a senior associate attorney at Farrow-Gillespie Heath Witter LLP. Jessica has substantial experience in probate, guardianship, and trust litigation, with a special interest in adoptions. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship.

Spencer Turner is an associate attorney at Farrow-Gillespie Heath Witter LLP. Since obtaining his license to practice law in 2016, Spencer has focused his legal efforts primarily in the trust and estates arena. He has been featured as a speaker on various aspects of the probate process at several seminars hosted by the National Business Institute. Spencer is a graduate from Baylor Law School.

Adoption | Farrow-Gillespie Heath Witter

Where Adoption and Inheritance Cross Paths

February 14, 2019/in Adoption, Estate Planning, Probate and Probate Litigation/by Jessica Dunne

When a Texan dies without a will, the decedent’s property passes to his or her heirs in accordance with the laws of intestate succession. Adoption may affect inheritance if either the decedent or an heir is a part of what is known as the adoption triad. The adoption triad consists of the biological parents, the adoptive parents, and the adopted child. This article explains the effects of adoption on inheritance for each member of the adoption triad. Additionally, this article suggests best practices for attorneys who find themselves responsible for, as well as individuals who want to avoid, the legal effects of an intestate estate.

The Adopted Child

An adopted child is the son or daughter of their adoptive parents for all purposes, including inheritance. An adopted child and the adopted child’s descendants inherit from and through the adoptive parents and their kindred as if the adopted child were the biological child of the adoptive parents. An adopted child also may inherit through his or her biological parents, if the right to inherit was not terminated in the adoption court’s order terminating parental rights.

The Adoptive Parents

The adoptive parents and their kindred inherit from and through the adopted child as if the adopted child were the biological child of the adoptive parents.

Biological Parents

Biological parents may not inherit from or through the child they placed for adoption.

Adopted Adult

In the case of adult adoption, which is generally defined in Texas as the adoption of a person age 18 or older, an adopted adult may not inherit from or through the adult’s biological parents, and the biological parents may not inherit from or through the adopted adult.

Determination of Heirs Through Court Proceeding

When a decedent dies without a will, the decedent’s heirs, as well as the heirs’ respective shares and interests in the decedent’s estate, may be determined through a proceeding to declare heirship. In a proceeding to declare heirship, the court is required to appoint an attorney to represent the interests of any unknown heirs. The court-appointed attorney will perform an investigation into the identity and location of the decedent’s heirs, including any heirs who were adopted or placed for adoption.

Practical Considerations for Attorneys

An adoption placement may be difficult for an attorney to ascertain for various reasons. Sometimes women do not share that they placed a child for adoption, even with close family members or friends. Sometimes men are not aware of the existence of a biological child that was placed for adoption by the biological mother. Moreover, it is difficult to unseal parental termination orders, especially from years past, to determine if the child’s right to inherit from their biological parents was terminated. Despite these potential roadblocks, attorneys representing the applicant or the unknown heirs in a proceeding to declare heirship should make reasonable inquiries into whether the decedent ever: (1) placed a child for adoption, (2) adopted a child, (3) had a biological child that was adopted as an adult, or (4) adopted an adult. Such inquiries are required for due diligence, and if discovered, these actions can significantly impact inheritance under the laws of intestacy.

Avoid Surprises by Executing a Will

Texas inheritance laws do not prevent biological or adoptive parents from disposing of their property in any manner of their choosing through a valid will. Thus, if a decedent has a valid will, the scenario discussed above should never become an issue. Regardless of whether adoption is part of your story, all individuals are advised to obtain a comprehensive estate plan to devise their estate as they wish. The attorneys at Farrow-Gillespie Heath Witter LLP are here to help.

Jessica Dunne is an associate attorney at Farrow-Gillespie Heath Witter. Jessica has substantial experience in probate, guardianship, and trust litigation, with a special interest in adoptions. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship. Jessica is uniquely equipped to represent individuals who are pursuing adoption because she is an adoptive parent herself.

Ten Legal Considerations for Texans Considering Adoption

May 26, 2017/in Adoption/by Jessica Dunne

This article is based on Texas law only. If you are adopting from another state or nation, you should seek appropriate legal counsel licensed by the jurisdiction from which you are adopting.

Photo used with client permission.

If you are considering adoption, you may feel excited, overwhelmed, and even concerned. While the excitement is expected and the paperwork is certainly daunting, your concern likely comes from the unknown. There are so many questions to answer when beginning the adoption process. International, domestic, or foster care? Attorney or private agency? Open, closed, or semi-open? And the question in the back of your mind – could the birth mother or father change their minds and take the child back?

Your concerns are valid and normal of any hopeful adoptive parent. Fortunately, Texas law is quite favorable when it comes to adoption, especially for the adoptive parents.

These ten legal considerations for Texans considering adoption are intended to put many of your worries at bay and allow you to focus on the journey toward growing your family through adoption.

Who Can Adopt

Single or married adults are eligible to adopt. If a married person files a petition for adoption, their spouse must join in the petition for adoption.

General Process of Adoption in Texas

Adoption is a two-step process, which includes: (1) termination of parental rights and (2) adoption of the child. An adoption of a child cannot occur without first terminating the parent-child relationship as to each living biological parent of the child.

Relinquishment of Birth Parents’ Rights — Timing

The birth parents cannot sign a relinquishment of parental rights until at least 48 hours after the birth of the child. A pre-birth contract or other written agreement for an adoption plan is unenforceable against a birth parent. For that first 48 hours, the birth parent has full legal authority to change his or her mind, choose to parent, and refuse to sign a relinquishment of parental rights. Understandably, the first 48 hours after the birth of the child can be nerve-racking for hopeful adoptive parents.

Relinquishment of Birth Parents’ Rights — Revocability

A written relinquishment of parental rights that designates the Department of Family and Protective Services or a licensed child-placing agency to serve as the managing conservator is irrevocable. The birth parents cannot simply change their minds, and the relinquishment is used in the proceeding to terminate parental rights. The birth parents can appeal an order terminating parental rights, but only on the basis of fraud, duress, or coercion in the execution of the affidavit. Those grounds are difficult to prove. Accordingly, once the relinquishment is signed, the adoptive parents should feel a sense of security.

Termination of Birth Father’s Rights – Waiver of Interest

The birth father (or an alleged birth father) can sign an affidavit of waiver of interest in the child, which may be signed before the birth of the child. This waiver is irrevocable and can be used in the proceeding to terminate parental rights.

Termination of Birth Father’s Rights – Without Notice

The birth father’s parental rights may be terminated without notice to him if he fails to register with the state paternity registry before the 31^st day after the child is born and does not commence a proceeding to adjudicate his paternity before the court has terminated his parental rights.

Although this termination procedure without notice is possible under the Texas Family Code, a judge has discretion to require that notice be given, if the father is known.

Six-Month Residence Before Adoption

The adopted child must reside with the proposed adoptive parent(s) for at least six months prior to finalizing the adoption. This allows time for the required post-placement evaluations, which are often performed by the adoption agency.

Inheritance Rights of an Adopted Child

An adopted child is the son or daughter to the adoptive parent(s) for all purposes, including inheritance. An adopted child may also inherit through the child’s biological parents; however, the biological parents may not inherit from or through the adopted child.

Contact with Birth Parents

Adoptive parents ultimately call the shots regarding contact with the birth parents, if any. Although open and semi-open adoption is very common now, especially in domestic adoption, open and semi-open adoption agreements are not enforceable by law. With that said, it is advisable to be honest with your agency about the amount of contact with which you are comfortable, and you should follow through accordingly.

Adult Adoption

Adults can be adopted. An adopted adult is the son or daughter of the adoptive parent for all purposes, including inheritance. However, the adopted adult may not inherit through the adult’s biological parents, and the biological parents may not inherit from or through an adopted adult.

Texas Law Favorable to Adopting

Texas law is designed to give assurances to prospective adoptive parents. Although we have all heard stories of unsuccessful adoptions or children returned to their biological parents, these scenarios are uncommon. The main area of risk occurs during the termination of parental rights. No matter how you adopt – internationally, domestically, or through the foster care system – this first step will likely be handled without much or any of your involvement. Most agencies include termination of the biological parents’ rights in the adoption fee package, and the Department of Family & Protective Services will terminate the biological parents’ rights for children in the foster care system.

Legal Counsel

You will likely have to retain legal counsel to perform the second step, finalizing the adoption. The adoption consists of submitting appropriate paperwork to the Court and attending a hearing in front of a judge. These hearings are short, relatively informal, and provide much cause for celebrating your new family!

Do your research and team up with experienced and respected adoption professionals to guide you through the process. The attorneys at Farrow-Gillespie Heath Witter are here to help.

Jessica Dunne is an attorney at Farrow-Gillespie Heath Witter LLP. Jessica has substantial experience in civil litigation with a special interest in estate planning, probate, guardianships, and adoption. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship. Jessica’s professional memberships include the Dallas Bar Association, Dallas Association of Young Lawyers, Texas Aggie Bar Association, Attorneys Serving the Community and the State Bar of Texas.

Probate Law | Farrow-Gillespie & Heath LLP

Dallas Probate FAQs

January 13, 2016/in Probate and Probate Litigation/by Jessica Dunne

Can I probate a Will in Dallas without an attorney?

Unfortunately, no. The Probate Courts do not allow individuals to appear on behalf of themselves. For all purposes in Probate Court, you must hire a lawyer.

I’ve been appointed as the Executor of a Will. What am I supposed to do?

The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

I am the Executor, and I have the original Will. Why does it need to be probated? Why can’t I just give away the property according to the Will’s terms?

Although the Will names you as Executor, the law says you are not officially the Executor until you qualify and receive your Letters Testamentary from the probate court. You need authority from the probate court to transfer the property to the new owner — especially if any of the property to be distributed is held under a “title,” such as a house, vehicle, bank account, or real estate. By probating the Will, you obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

What if I want to contest a Will?

Contact a probate attorney immediately. If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

What if the Will doesn’t provide for an independent representation?

If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive. (This situation emphasizes why it is important for anyone who owns property to have a properly drawn-up Will.)

What if there is no Will?

If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property. If the decedent owned property worth more than $50,000, the next of kin (or other person with an interest in the estate) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

All the deceased person owned was his or her home. Does the Will still need to be probated?

Yes. Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house. However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property. The procedure is called a “Muniment of Title.” Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

I have looked everywhere for the original of the Will and can’t find it. What should I do?

It may be possible to probate a copy of the Will. Also, it may be that the decedent had a safety deposit box to which you do not have access. We can assist you in finding the box and obtaining a court order to gain access to it.