Home & Residence

The Decedent’s Residence

The decedent’s homestead can present some unique challenges for the personal representative.  Disputes in this area are frequent.

What is a Homestead?

Texas law provides a very broad definition of the term “homestead.”  It can even include a business property. Under Texas law, a “homestead” includes a parcel or parcels of land that is used as a home or as a place to exercise a calling or business.  A homestead generally means the house constituting the family residence together with the land on which it stands and all appurtenances.

A person may not have more than one residential homestead at a time.  A business homestead may exist with or without a residential homestead, although the business homestead is ordinarily part of the residential homestead.

Texas law provides for two types of homesteads, the rural homestead and the urban homestead.  

Rural Homestead

A homestead is rural if, “at the time the designation is made, the property is not served by municipal utilities and fire and police protection.”  The acreage composing a rural homestead must be entirely rural. If it consists of a single tract, all of it must meet the requirement for classification as a rural homestead.  If there are two or more parcels, each of them must meet the requirement. A rural homestead for a family can consist of up to 200 acres, together with improvements on the land.  The acres are limited to 100 for a single adult person.

A rural homestead can comprise two or more parcels.  Since only one of the parcels can actually be used for purposes of a home, any other parcel that is included must be used for the support of the homestead claimant.  The support requirement is a liberal interpretation of the constitutional proviso that homestead land can be used only for purposes of a home “or as a place to exercise the calling or business of the homestead claimant.”  The requirement may be met, for instance, if use of the second parcel is agricultural in nature.

Rural land is used for the support of the homestead claimant if it is cultivated for income for the home or used directly to raise supplies, cut firewood, and the like.  Clearing brush, planting grass, and grazing cattle on the property meet the support requirement. On the other hand, merely renting agricultural land to farmers may not meet the support requirement.

Urban Homestead

In contrast to a rural homestead, an urban homestead is one “in a city, town, or village.”  A homestead is urban if it is not rural. An urban homestead is limited to one acre, together with improvements.

An urban homestead can comprise two lots, one of which is used for the purposes of a home while the other is used as a place to exercise the calling or business of the homestead claimant, as long as the aggregate area of the two lots does not exceed one acre.  The lot being used for a business purpose must be “in the same urban area” as the residential lot.

When the Homestead is Not Occupied

If the decedent’s homestead is not occupied, the decedent’s family members and heirs are entitled to access the property.  It may be advisable for the family members or heirs to change the locks and secure the property to prevent others from entering the property.  

Surviving Spouse’s Right to Use and Occupy Homestead

Texas law allows the surviving spouse and, in certain cases, the decedent’s minor children, to occupy the decedent’s homestead as long as they elect to do so.  This is true even if title to the homestead passes to someone else.

The surviving spouse or children do not need court approval to make this election.  But the person claiming a homestead occupancy right can obtain an order confirming the occupancy right after the inventory, appraisement, and list of claims have been approved or the affidavit in lieu of the inventory, appraisement and list of claims has been filed in the probate.  

The right continues for the life of the surviving spouse or until they abandon or sell their interest in the homestead.  Abandonment is shown by establishing that the person does not intend to return to the property or use it as a family residence.  The right cannot be assigned or transferred.

The surviving spouse must pay the property taxes and mortgage interest during the term of occupancy.  The surviving spouse is entitled to reimbursement for amounts paid or incurred for improvements to the homestead made with a good faith belief that he or she owned the property outright after the death of the other spouse.  The heirs are responsible for insuring the property and paying for the principal payments on the mortgage.

Homestead Occupied by Others

Complications can arise when the decedent’s homestead is occupied by anyone other than the decedent’s spouse or minor children.  This is particularly true if the occupants will not inherit the property under the decedent’s will or under Texas laws of descent and distribution.  

The heirs may permit these third parties to remain in the property; however, once the personal representative is appointed, the personal representative may have to start collecting rent or start the eviction process.   

In addition to a homestead, the decedent may own other investment assets.  We’ll consider stocks, bonds and mutual funds next. Click here to continue reading.  >>>>

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