Legal Question in Wills and Trusts in Texas
My Dad passed away a year or so ago and we now realize that when the house was purchased back in 1963, my mom name was not listed with my dads as joint owner of the house at the County Clerks Office, though her name is on all the house paperwork, including the Warranty Deed. The clerk's office said that because it was more expensive for the county to put both names, it was not unusual back then for the clerks office to put just one name on the paperwork(sounds strange to me) She is also the automatic heir of the home due to being in a cmmunity property state, as I understand it. The Tax Office is telling us that we have to get an Affidavit of Heirship and take it to the County Clerk's office. Why is this necessary? Can't she just take all of her original paperwork which whould be more than adequate proof,and have them make the necessary corrections.
4 Answers from Attorneys
The way the county clerk lists the property is not determinative of who owns the property. If the warranty deed and the deed of trust list your mom then the need for an affidavit of heirship is questionable.
If dad purchased the house when he was married to Mom the house is presumed to be community property of mom and dad. However if dad purchased the house with separate property such as an inheritance from a rich uncle, it would be possible to defeat the community property presumption. However, to sell the house, you would need to have something to record in the deed records to show that Mom owns at lease her community share of the house. This could be a judgment declaring what your mom's ownership is, or a deed from the executor of your dad's estate (assuming he died with a will). If he died without a will, a deed from the administrator of his estate might work.
An affidavit of heirship would work but only after it had been recorded in the deed records for a sufficient period of time. To make any of these things happen, you should hire a lawyer to help you out.
My guess is that Tax Office want's your Mom to file an Affidavit of Heirship so they can start taxing your mom on the value of the house. I suggest she first speak with an attoreny before filing anything.
Good answers..but it sounds like bureaucracy at its worst..go see the County Clerk or the County Judge..they can't tax differently than presently...the house is hers....
The original paperwork shows both names, right??? If you aren't going to probate Dad's estate then an affidavit of heirship is to show that Mom inherited Dad's community share of the house, which along with her own community share gives her full ownership the house. You'll need to be able to prove that or when it comes time to sell the house you may have problems.
Don't think this has anything to do with who is on the tax rolls since the county clerk and the tax assessor are different entities..
Do not take legal advice from clerks. They aren't attorneys and don't know the law and most will tell you immediately they are not giving you legal advice just trying to answer the specific question you asked.
Before you do anything, you really need to talk to a good probate attorney. There may be other issues that need addressing.
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