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Kids can’t force stepmom to share proceeds of their late dad’s home sale

July 24, 2018

The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: Our dad died last year with a will and left his entire estate to our stepmother. Our mother died 10 years ago without a will, and her name is still on the title to their residence. Our stepmom is selling the house and says she will use the proceeds to buy another home. She says we’ll receive our share of her new home after she dies. Is that correct? The three of us want our share of the home’s value now.

A: When your mother died without a will, her interest in the home passed to your father. He became the sole owner of the home. The fact that her name is still on the deed does not change the fact that he died owning the home.

When your father died and left his property to your stepmother, she became the new sole owner of the home. That means she can do whatever she wants with it. If she decides to sell, she can do so unilaterally, and the three of you have no right to prevent the sale or ask for a share of the proceeds.

You also are not entitled to any share of the next home she buys. That home will belong to her, and the only way you would ever receive any part of it would be if she decides to leave part of it to you when she dies. She and your father might have informally agreed that he would give her the home, and in return she would leave part of it to the three of you. Of course, that is just speculation.

This answer would change if your mother had owned the home as her separate property, or if one or more of your mother’s children were from a prior marriage or relationship. However, based upon the wording of your question, neither of these possibilities seems to apply.

Q: Even though the Transfer on Death Deed form changed on Sept. 1, 2017, I decided to use the old version of the form because I didn’t like the wording of the new form. I signed it and filed it with the County Clerk in 2018. Is my TOD Deed invalid because I used the old form?

A: It is most likely not a problem that you used the old form.

The Texas statute does not say you must use the newest version of the form. It simply says that the form they provide “may be used to create a transfer on death deed.”

Of course, you will never know if using the old form actually is a problem because nothing happens with the TOD Deed until after you have died. There is a slight risk that a title company will notice you used the old form and give your beneficiaries a difficult time with an attempted sale.

If you want to play it totally safe, you could prepare, sign and record a new TOD Deed using the new form.

Ronald Lipman, of Houston law firm Lipman & Associates, is board certified in estate planning and probate law by the Texas Board of Legal Specialization.

Email questions to stateyourcase@lipmanpc.com