Legal Question in Wills and Trusts in Texas

Re: Selling of willed house

Mr. Bradie covered your question very well. I would add that it is important to probate a will within 4 years of the date of death. Since it has already been more than 4 years from the date of your father's death, it is too late to file the will for probate now. The title company will want your father's legal representative (the executor in the will) to sign the new deed. They may want to see a copy of the will, and they will definitely want to see the Letters Testamentary, which is the certificate of the court showing that the executor has qualified and been approved by the court. The probate process is also the means for increasing the basis, (the base value of the house for capital gains tax purposes), to the value at the date of death, thereby lowering the capital gains tax. If the house was community property, half of it belongs to your mother-in-law regardless of what name is on the deed. If the house was his separate property, she has a lifetime interest to continue living here, but title belongs to his estate. If your father's will was never probated, the land title is not as clear, but call me at 210-655-9090 and perhaps I can help you with some options. The title company should tell you what documentation they need before the closing date.

Re: Selling of willed house

You haven't said whether your father-in-law's will was probated, and whether the house was his separate property or community property. There's a great deal of difference between the estate selling the property and the heirs selling the property; the estate pays capital gains dating back to the purchase of the property, while the heirs pay capital gains from the value in '85.

There are no estate taxes involved, unless the property being transferred under the will is in excess of whatever the limit was in '85.