How property transfers without a will

And so then you’re going to have that estate without a will. It’s going to be separated into community property and separate property.

Okay. I’m going to pause you right there, because community property, I think it’s an assumption of a lot of people. Maybe you guys are different, but I think it’s an assumption. We hear this a lot in Texas. If we live in the home, if I live in the home with you, then it’s community property, 5050, right. Is that true?

No, no. And here’s here’s an example. Let’s say that you and your husband decided to move out of your beautiful home. And let’s say that your husband had inherited his parents home out on a lake, and you both moved into that house.

For the time being. And that’s where you decided just to set up shop for now on. That’s his separate property.

That’s his separate property without a will.

Without a will is separate. That’s his separate property. And so it’s it’s handled a little bit differently in in the state of Texas. If he were to proceed you in death, you would get one third of that separate property. But it would be for your life. You would have basically a life estate. And then it would pass to your children. So you would never truly own that property. You would have use of that real property. But you wouldn’t. It wouldn’t be yours.

So how would it get sold?

That’s going to be one that probably the children are going to have to get involved. If that house were to be sold after after the husband’s passing or the wife, whichever one had that separate property, you’re going to have to get those heirs involved and they’re going to have to agree to it.

So that’s on separate property.

Yes. So that’s that’s one situation. So let’s talk about the unfortunate that, you know, you and your spouse. I’m not going to say Mike and I, because this kind of freaks me out like this, that you and your spouse live in a home and one of you passes, right? You bought it together. You live in it together.

It’s community property. The spouse passes and you’re ready to sell.

There’s no will. 100% of that community property goes to the surviving spouse. Okay, so it’s yours, free and clear. But again, anyone could contest that. An heir could contest that along the way. So that’s why it’s so very important to get a will. It’s so very important to plan, right? Because if you’ve planned ahead of time, it takes a lot of the headaches off of the family.

So let’s go back to this question, not to put you on the spot, but okay, so this happens and I have 100% of this property.

Yes. So say there’s children like we have three boys. But what if there were three other boys somewhere else? How does that work? We have three boys together and three boys, not two.

That’s a blended family.  So that’s a blended family. Selling without a will you say I have 100%, but is that right?  

Right. And so, yes, if it’s community property, then yes, you would be able to keep that part. I’ve got some notes here, if you don’t mind, because we disclaimer here. I am not I am not a lawyer here. So I do I.

Should O.D. on here too, because she should have put this up up front that I am not a lawyer.

Neither am I and in a blended family, your children are going to get all of your half. So the the spouse that passes away in a blended family, their natural children will get half of that community estate.

Ok and then what about the other?

The other half gets the spouse gets the surviving spouse gets to keep their part. So I keep…. we’re not taking you and Mike right.

Now, are you? You, somebody else gets, the surviving spouse gets 50%. The other 50% is divided amongst the children.

Exactly right. The spouse that passed away and the children of the spouse that passed away would get their their half of the community estate.

It’s confusing already. Very, very confusing. So we don’t need to dissect this for clients. What we need to know is, is this to understand if this is a possibility. So if you go in and you have one single seller, ask the question, have you been married in the past? Yes.

Then that sparks well, when did your spouse pass? And you need to these are uncomfortable, but you have to ask the questions and say, this is why I’m asking. I don’t want you to have an issue or run into a roadblock at the last minute. So what we need to do is prepare, right?

Exactly. And everyone tends to overshare, right. So we find out a little bit of that information in a way. But I think just making sure, yes, you the person that’s sitting in front of me that I’m talking to about the list, that house that yes, you have the ability to sell that house yourself. There’s nobody else that has interest in this house.

And you know what? This is okay? You walk in and there’s only one seller. What if you walk in and there’s two sellers and everything’s going smooth? And then a week before closing, there’s a horrific accident and something happens and then there’s no will.

And then, you know, gosh, guys, that is is not fun. No, there’s that that is a bad situation happening. But it can happen. So as professionals, you know. Despite what some may think. We provide tremendous value because we do ask the questions.

We’re human, we ask the questions we care and we help them and guide them. Now, you’re not going to give them well, this is what’s going to happen and give them these practice law here. But what you’re going to do is say, I think. We need to get an attorney and we need to make sure that if something happens, you know, you may have never had to think about this before, but now you’re selling.

What happens if someone do you have a will? I think that should be the simple answer or question. Do you have a will?

And if they say no, say. You know, you can get you can do living wills. You can find them on the Internet, you can do them quickly. But you should say, hey, I strongly encourage you. It’s not fun to talk about. However, if this happened, you know, you need to be prepared.

Well, and honestly, I could sit down right now and on the back of this sheet of paper, I could write out a will and leave you everything and I could sign it. And it’s legally binding.

It’s legally binding.  And and I would also say that. Rely on your title company as well. Absolutely. Companies have a team of lawyers that deal with the real estate law. And so they know this the ins and outs of all of this.

And if there’s something happens where, like you said, God forbid there was an accident called that title company and say, I need some help from your team of lawyers and and any title company that is worth their salt will have a team that can help you out and give you some advice and say, this is what this is. These are the steps that we’re going to have to take.

And from experience, I mean, there were things we thought, you know, my dad passed away and he we knew he was sick and we knew he had a will. However. You know, at 80 years old, my dad decided to get. We married at 80 and so that wasn’t accounted for in the will.

So it was difficult. So just, you know, don’t be afraid, ask the questions, guide them, help them. It’s no different than if they call you a month later and their sewers backing up in their front yard, you’re going to help them and guide them and care for them.

So try to be proactive and let them know, you know. You’re the professional and you’re bringing up these things that people would never have thought of. Right. And they don’t want to think of. So that makes it difficult. But, you know, gosh, it’s it’s much better to do something like that than have to be reactive to that situation because it’s.

It’s stressful. It’s expensive. It’s it’s lengthy.

Absolutely. And that goes back to someone having a plan ahead of time is the best bet because it. Even even in your father’s case, as you mentioned, he still had a will, which that’s at least somewhat good because thing.

Yeah because it helped at least this is what he would like to happen and then the ones that are not updated in there it could be a battle, but hopefully.

Everyone it works out. Hopefully everyone works together.  

It was it went about as smooth as you could ever imagine.

So thankfully. Right.  Yeah. So we’ll close the how property transfers without a will and we’ll dive into the next part.

Episode Links

community estate, Texas, Mike Acquisto , Shana Acquisto , TNT 

Episode Recorded Live on YouTube 08.18.22

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