Legal Question in Wills and Trusts in Texas
I live in texas and my mother recently passed away without a will. I am an only child and my mother was unmarried. My attorney filed a small estate affidavit as it appeared that all requirements were met; however the judge refused to issue a order because he says my mother's homestead can only pass to me thru the affidavit if I am unmarried and resided with her at the time of death.(homestead to homestead). I am married and own a seperate homestead. The judge is demading we go thru a determination of heirship proceeding, which is very costly.
My attorney swears the judge is wrong. I have found conflicting information in my research. Please help on this subject. Thanks.
2 Answers from Attorneys
Here is the rub. I bet you are not in a probate court but either a county or district court in whatever county. The judge may be reading the law so that your mother's homestead is no longer homestead and that would cause the value of the estate to be above the statutory $50000. I think that's the wrong interpretation and the proba the judges in and around Dallas don't read the law that narrowly. Good luck unless you can do the proceeding in another county. If you are looking to sell the property sometimes title companies will accept a statutory affidavit of heirship.
If the only asset is the homestead, then consider using an heirship affidavit in lieu of a full blown proceeding.
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