How to Determine Property Rights When Will is Unclear

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

“My great grandparents bought some town lots in 1906 at a town site in Texas that doesn’t exist anymore. It was near a salt and alkaline lake. My grandmother, and then my mother, and now I am paying taxes on it. No one has ever offered to buy these lots in a hundred years. Last July someone did and was trying to buy the lots of other descendants of the original settlers. For the legal part. Mom didn’t leave a will. But my grandmother did and she names Mom to take care of her affairs and if Mom wasn’t around, she names me to do it. Granny died in 92 and Mom in 2010. Do I now own these lots as to whatever interest is attached to them by tax assessor roles? Understood the mineral rights would be determined by abstract search that I haven’t done yet. Appreciate any advice and thank you.”

This is really a probate question, not real estate.  Lucky for you, we’re shifting our practice to estate planning. Assuming that no probate has been opened for either your grandmother, or mother, it’s most likely your grandmother’s estate that owns the property.  Who will ultimately own it will depend on the terms of your grandmother’s will and (if your mother inherited all or part of the property) what relatives your mother left. Starting with your grandmother, in addition to naming the person who handles the affairs of the estate (the “executor”), the will should specify who inherits the property.  If it doesn’t specify the house, there’s usually a “residuary” clause that says something like “all the rest of my property goes to X.”

This doesn’t happen automatically, however.  In general, you have to open a probate in order to have the court actually make this transfer. This can be a fairly expensive and time consuming process.  Your state may have a provision for a shortened procedure for “small estates,” which you can look into. Let’s assume for the moment that your grandmother’s will leaves the house to your mother.  She died without a will, so in addition to all the issues with your grandmother’s estate, you have to deal with your state’s intestacy laws.  These specify who gets property when there is no will.  In general, this would be the closest family members, though the particulars do vary from state to state. So, if you’re lucky, there may be an abbreviated process for transferring this property to whoever is entitled to it.  If not, it could easily be a couple of years or more before you open and close two separate probates.