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What are the responsibilities of an Executor of a Will/Estate in Texas?

Baytown, TX |

My mother passed away in 2010 and my Uncle (her brother) was names as Executor of her Will and Estate.

According to the Will a few small personal items went to various people with "the residue of my estate, real, personal and mixed, whereever situated to my Daughter".

She owned a home with another person. There was no marriage and I was not a minor at the time of her death. No survivorship rights were stated in the Deed of the home and no mention of the home is in the will other than the quoted text above regarding the residue of her estate.

The home is now listed as being owned by "The Estate of ..." and the other co-owner.

Was the Executor responsible for distributing this her 50% of this home to me after probate? How? Should I have a key? Do I need an attorney?

Attorney Answers 3

Posted

Having an attorney is never a bad idea, and you should certainly consult with one at a minimum. Executors in Texas have 3 basic jobs. Collect assets belonging to the Estate, pay and resolve proper debts against the Estate and distribute the remaining property in accordance with the Decedent's Will. Wrapped up in those 3 jobs could be a little or a lot of management, depending on a number of facts.

If your mother co-owned a home with another person, and if you received your mother's interest in the house under her Will, the Executor should have executed and recorded a Special Warranty Deed to reflect the change in ownership as a result of the distribution. Obviously, this assumes that the remaining property (including the house) is sufficient to cover the proper debts of the Estate and the expenses of administration. In the end, you wouldn't own any greater interest in the home than your mother did.

Divided ownership issues in probate are very common. Many times they present practical problems. Who wants to own 1/2 of a house? It isn't likely that the other co-owner wants to share the residence with you, and nobody wants to buy your 1/2 from you. Most issues like yours are resolved by one co-owner purchasing the outstanding interest, or the co-owners selling their interests to a single third-party. You don't mention the other co-owner much. Have you addressed this concern at all with them?

If no agreement can be reached, the Court could ultimately order a partition and sale of the property, and the proceeds would be divided at that point. Executors in Texas (except in only some very rare cases) must be represented by an attorney. You might make an effort to contact this attorney to gain a better understanding of where things stand. With your mother passing away nearly two years ago, many of the beneficiary timelines that permit you to request and compel information have lapsed -- meaning that you are now likely entitled to quite a bit of information and action.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.

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Posted

I agree with Attorney James Brian Thomas response. There are so many potential problems that you really should speak to an attorney who can properly advise you depending upon the facts and circumstances. Co-owners are usually responsible for paying the mortgage, interest and possibly the upkeep on the home, depending upon who is living in it and what, if any, lease agreement that may exist (although a lease by one co-owner is a risky business). Your daughter should investigate as to the amount of equity (if any) in the home and is the home worth pursuing. Also, a deed may have been filed with the county real property records showing both your daughter and the other co-owner owners, but the CAD may still list the home as "co-owner & Estate of ...." if the proper paperwork was not filed with the CAD. Other issues: If someone fails to pay the taxes then there is always the possibility of foreclosure. If a tenant is leasing the home, then the co-owners should be dividing any rentals received (less any mortgage, upkeep expenses, property taxes, insurance etc.). It is also important to make certain someone is paying for insurance on the home; if there is no insurance and the home burns or floods, it could be a great loss. The Executor should deal with these issues and if not, then your daughter should hire a probate or real property attorney to protect her interest in the home (and any other property the Executor may have failed to deliver to your daughter). I am sorry for your loss and I hope that you and your daughter resolve this matter in a timely manner without any rancor. Take care.

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Posted

When you say the property is listed as being owned by "The Estate of...." I assume you mean you found this information off the local tax or apprasial district sites? This does not mean the estate owns the house by title, only that the taxing authorities are looking to the estate and co-owner for the taxes. Eventually one-half of the value of the home should be transfered to you by the Executor and you will become a co-owner. At that time, both co-owners will be responsible for paying the mortgage, interest and possibly the upkeep on the home, depending upon who is living in the home. The Executor could force the sale of the house in certain circumstances. Usually each co-owner has the right to possession of the house, but the other owner may have some sort of homestead right by law. You should consult an attorney to discuss your rights, or at least contact the estate's attorney.

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7 comments

Asker

Posted

Yes, that is what the local tax authority shows. As far as I can tell, and I'm not an attorney, there is no homestead right as she is not a living spouce nor is she a minor. There is no family bond there, they were "roommates" as far as the law shows (or that I can find in Texas Homestead and Probate Laws through searches). There is no mortgage. The Executor was also the Beneficiary to my mother's 401k and paid off the mortgage loan upon receiving those funds. Only my co-owner is living in the home and, as I understand it, is responsible for upkeep, taxes and insurance. I could, of course, be incorrect on that. I have no idea if she even keeps a home owner's policy on the house (especially without a mortgage). I can see that the taxes for 2010 were paid and that she has made a modest payment toward the 2011 taxes, but a tax bill of under $300 with no mortgage payment just doesn't seem to be all that much to pay and she didn't even pay 1/3rd of that bill with the payment she did make. The Executor basically told me that I could not live in the house but that I own 50% share after probate was completed. He also stated that his intention was to "wipe his hands" of the situation. None of my mother's property (not even small personal effects) were distributed to me. Basically, he went into the home before he filed the Will in Probate and removed what he wanted stating that it was what my mother wanted, filed the Will for Probate, allwoed the letters to go out from the attorney and did nothing else. I have no idea what happened to my "inheritance" or even what the inventory was. It has been recommended by every attorney I have spoken to that I first contact the Probat Lawyer who represented my Uncle (the Executor), but he has refused to talk to me in the past and really, everyone tells me to go talk to him. I am simply unsure of what to do at this point. I cannot afford a lenghty and expensive lawsuit and have yet to find an attorney in my area, or anywhere for that matter, who will just talk to me and give me options without wanting a retainer up front. I feel like my hands are tied and I don't want to get to the point where I can be accused of "abandoning" the property. I realize that most people wouldn't want to own 1/2 of a house, but my mother worked her behind off to be able to purchase it and the reality is, regardless of the law or what paperwork shows, my mother paid for that house in full from day one. I can't loose my mother's house. I simply want to live in it and I don't care if the co-owner shares the home also. It is more than large enough for both of us (it is basically a duplex with a shared kithen even to the point of having two seperate living areas attached to seperate bedroom/bathroom areas with an ajoining kitchen/dining room). There is zero reason why we would even have to see each other. Is there something that can be done, besides paying thousands of dollars to an attorney I can't afford, to obtain my right ot posession of the house...basically get a key and inform her of my right to live there?

Patricia B. Cole

Patricia B. Cole

Posted

You said something that gives me great concern. You said that the Executor got the 401K funds (I assume you mean the estate) and he paid off the mortgage that was owed on the house. There could be a real issue with the Executor's actions for several reasons. It might have made more sense to release the house back to the bank instead of using cash to pay off the mortgage. Then you would have cash and not the house co-owned with someone else. This should have been something you were consulted about from the beginning. Also if the mortgage was in both parties names, then the co-owner was benefited by the payoff and not you. As for an inventory, you can get this from the Court Clerk where the will was probated. It is public record and as the beneficiary of the will you should have access. Have you checked the real property deed records for your county to see if a deed has been filed by the Executor yet? If not, then send a letter to the Executor and cc: his attorney asking when the deed will be executed and delivered to you. Under Texas law presumes that if two non-spouses are “tenants-in-common.” This means that each person owns an undivided one-half interest in the property. When one co-owner dies, the interest of the deceased co-owner goes directly to that person’s heirs as in your case. With tenants in common, each owner has a legal right to the property no matter how small the interest is. The tax liability on a property owned by tenants in common should be split by the owners based on their ownership percentages. If I were you I would consider contacting the other owner (by written letter) and explain that you own ½ the property and would like to live in ½ the property. I would also explain that if the other owner refuses to provide you with access to ½ the property that you will be forced to hire an attorney to obtain access or to sell the property. If you can’t work something out there is nothing else you can do but hire an attorney, who should review what the Executor did with regards to the 401K money and mortgage to ensure he did not breach his fiduciary duty.

Asker

Posted

I have tried to do all of what you've suggested, with the exception of the letters. I will do that right away...both to the Executor and to the Co-Owner. The Executor is my Uncle. I asked him specifically NOT to pay off the loan on the house long before he did it. I asked for a copy of the Will several times before he put it in probate. My mother passed away in April of 2010, he did not file the Will until November of 2010 and I did not receive anything concerning probate until the letter from his attorney. I got that in January of 2011. I have spoken with both him and the co-owner about my rights to the house. She (my co-owner) claims she's spoken to an attorney who said that I have no rights but that conversation was an "over the phone consultation" from what I was told. It looks like the letters are my final option before hiring an attorney. I sincerely appreciate all of the advise given here!

Asker

Posted

Oh, and no, I did not mean the estate in regard to the 401K funds. Or at least I don't think I did. My uncle, who was also the Executor of the Will, was named as direct beneficiary to my mother's 401K, or at least that is what I was told.

Patricia B. Cole

Patricia B. Cole

Posted

You should be able to get a copy of the entire probate file if you need it. If the Executor filed the will for probate in Nov. of 2010, you can make a demand for an accounting of the estate after 15 months have passed. Make this demand directly to the Executor in February of 2012 and cite Sec. 149A of the Texas Probate Code. Always cc: the attorney with letters to the Executor. If the Executor refuses to give you an accounting, you can file a demand for accounting under 149A of the Texas Probate Code with the clerk in the probate case. Then set a hearing with the Judge and go tell the Judge he refuses to give you an accounting. If the Executor attempts to close the Estate with a Final Account, you need to act fast and consult with an attorney.

Asker

Posted

This is the last entry in the Probate Files that I can find through the Harris County Probate Records file search... "Drop Order Ord Cancelling Ltr & Closing & Dropping Est Signed 05/03/11 Filed Est Lavonia Darlyne Reeves*D*" I would guess that I can reasonably assume the Executor has closed the Estate without distributing all property and that I, in fact, will have to hire an attorney whom I cannot afford or take my loss and go about my business. Would these be my only options at this point?

Patricia B. Cole

Patricia B. Cole

Posted

You may or may not have a claim against the Executor. You should consult with an attorney concerning your options. Many attorneys will do a consultation for free. Good Luck!

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