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Are minor children and ex-spouse who is their biological father allowed to remain in the decedent's homestead after her death?

Houston, TX |

My ex-wife died testate with 2 minor children who lived with her at the time of her death. We were told that the home was in foreclosure and that we could not stay there. After the will was probated, the home is listed as being owned by the estate. Can we and how would we request that the home be returned to us?

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Attorney answers 3


This isn't a family issue - it's a probate issue. The "estate" may own the property, but that doesn't mean that it's not being foreclosed upon - the "estate" would be the owner until the transfer to the bank or a sale is complete. That said, there is no way you'd just keep the house because her kids lived there - someone will have to pay for it. So, it's not "just" going to be returned. Have the will reviewed by an attorney, but I'm guessing you'll simply need to move on to another residence.

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You need to hire a probate/estate attorney to help you.

I agree with the other attorney - this is not a family law issue - it is a probate issue. You need legal representation.

It is impossible to answer your question without additional information. I would need to know if she left a will. Who was the executor? Things like that. The children have the right to know if they inherited anything. As their father, I assume that you are now caring for them, you would have the right to know if they inherited anything and if it is in trust for them when they reach 18 or at a later date.

Look on this website and hire an attorney immediately. You should have consulted a lawyer on behalf of your children as soon as their mother died. I'm surprised that no one told you to do that to protect their interests. You are very late in the process of trying to protect your children's interests.

Good luck.

Fran Brochstein has over 20 years legal experience & enjoys educating the public about Texas laws. She is a full-time family law mediator in the Houston area. If you found this answer "helpful" or "best answer", please select the button to show your appreciation. Please understand that this is not a personal consultation and in no way creates an attorney-client relationship. You are strongly encouraged to consult with an attorney in your county in person about your specific legal problem. You can contact her at 713-805-9591 - 7 days a week - her personal cell phone.


Hire a lawyer, get the deed transfed, pay the mortgage

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