My wife died and left everything to me. Everything has been changed to my name except for our house and one checking account. How best to handle those assets?
Q: My wife passed away last May with a will leaving everything to me. Most of our financial accounts were held as joint tenants with right of survivorship. Our home was jointly owned. Everything has been changed to my name except for our house and one checking account. How critical is it to redo this account and the home?
A: You may be able to go for years or decades with your wife's name on the checking account and on the title to your house. But at some point, you or the beneficiaries of your estate will want to close the checking account, sell the home or refinance your mortgage (if you have one).
Closing the account may be easy, especially if there's little or no money in it, but that depends on how difficult the bank wants to make it.
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Selling the home may be more difficult. The title company involved in the sale may simply require only one or two affidavits of heirship to show that you inherited your wife's half of the home, but it might instead require that your wife's will be probated.
In Texas, probate must be started within four years of a person's death unless you can prove to the court that you were "not in default in failing to present the will for probate" within the four-year time frame. Those are the exact words from the statute. Essentially, you need a good excuse for why you did not start the probate.
Courts 20 or 30 years ago routinely let people probate a will more than four years after a person's death. At least that was my experience. But today, judges are far more reluctant to allow the probate to proceed, especially if your only excuse is that you didn't want to spend the money.
If all of the children you and your wife had were from your marriage to each other, some attorneys in Texas would advise you to skip probating the will altogether and instead simply prepare and file two affidavits of heirship. But other attorneys will advise you to do the probate, regardless of cost. Other attorneys do not think affidavits of heirship should be viewed as an option until four years have elapsed after a person’s death.
If money is not an issue, or you want the home and account transferred to your name alone, you should opt for probate.
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But if you want to take your chances and avoid having to pay the fees associated with probate, you can do nothing at this time or find a lawyer to assist with the preparation of the two affidavits of heirship, which are less expensive than probate.
The information in this column is intended to provide a general understanding of the law, not legal advice. Ronald Lipman of the 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.
Choosing between probate and an affidavit of heirship
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13.02.2024
My wife died and left everything to me. Everything has been changed to my name except for our house and one checking account. How best to handle those assets?
Q: My wife passed away last May with a will leaving everything to me. Most of our financial accounts were held as joint tenants with right of survivorship. Our home was jointly owned. Everything has been changed to my name except for our house and one checking account. How critical is it to redo this account and the home?
A: You may be able to go for years or decades with your wife's name on the checking account and on the title to your house. But at some point, you or the beneficiaries of your estate will want to close the checking account, sell the home or refinance your mortgage........
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