In addition to handling your grief, you may have to go to probate court to figure out what to do with a loved one’s assets after they pass. Your court case might include questions about who gets the decedent’s home. So, can you live in a house during probate in Texas? Yes, but you might have to navigate a court case before you receive the right to continue living there. Your options also depend on the type of relationship you had with the departed (the decedent).
We imagine worrying about housing is the last thing you want to do during your grief, which is why Robbins Estate Law is here. Robbins Estate Law cares deeply about the people close to those who have passed. We provide decades of combined legal experience to those facing challenges in Texas probate courts.
A Few Basics About Probate
We should first discuss some basics of the probate process. At the beginning of a probate case, the decedent’s will or the court names a personal representative. The representative must pay the decedent’s debts and distribute the decedent’s assets. To move this process forward, a handful of things need to happen:
- The personal representative needs to provide the court with an inventory, appraisement, and list of claims or an affidavit in lieu of these matters; and
- The court must approve the personal representative’s affidavit or inventory, appraisement, and list of claims.
Next, let’s briefly cover the steps mentioned above in greater detail.
The Inventory, Appraisement, and List of Claims
With an appraisement, a personal representative must inventory and document the estate’s assets and estimate their value. The representative must also list any claims against or debts of the estate. The court uses this information to determine the estate’s worth and decide how to handle debts and assets.
The Affidavit in Lieu of an Inventory, Appraisement, and List of Claims
Under Texas probate law, an affidavit in lieu of an inventory, appraisement, and list of claims allows certain representatives to avoid filing a complete inventory of an estate’s assets. This option may be available when:
- All estate debts are settled, aside from secured debts, administration expenses, and taxes; and
- Entitled beneficiaries have received a verified, detailed, and full inventory and appraisement.
A representative could file an affidavit regarding the abovementioned matters to move the probate case forward without an inventory, appraisement, and list of claims.
Court Approval for the Representative to Administer the Estate
After the representative submits information regarding the estate’s assets and debts, the court may approve. With approval, the representative can start the process of paying off the decedent’s debts and giving the decedent’s assets to beneficiaries.
For individuals in limbo regarding their post-probate living arrangements, getting to the distribution phase of a probate case could take several months. Fortunately, there are legal protections for certain people living in a decedent’s home when the probate process begins.
When Can You Live in a House During Probate in Texas?
You may be able to remain in a decedent’s home during probate under a “homestead exemption.” The Texas homestead exemption sets aside a primary residence for a surviving spouse or the minor children of a decedent during probate.
How you get a set aside depends on the following factors:
- How you are related to the decedent,
- Your personal characteristics,
- What point you are at in the probate process, and
- Whether the court receives certain paperwork regarding your situation (if applicable).
A big factor affecting whether you can live in the decedent’s home is whether you seek to live there before or after the claim and asset information approval.
A Set Aside After Approval of the Inventory, Appraisement, and List of Claims or Affidavit
A surviving spouse and minor children of a decedent can live in a decedent’s home immediately after the court approves a representative’s affidavit or their inventory, appraisement, and list of claims. At this time, the court also immediately sets aside other property like clothing, jewelry, and home furnishings for a surviving spouse, minor children, and certain adult children of the decedent to use during probate.
A Set Aside Before Approval of the Inventory, Appraisement, and List of Claims or Affidavit
The decedent’s surviving spouse can apply for a set aside before the court approves a representative’s submission regarding the decedent’s assets and claims against the estate. Also, anyone with authority to act on behalf of the decedent’s minor children can apply for a set aside at this time. Anyone who files for a set aside before submitting an affidavit or approving an inventory, appraisement, and list of claims must prove that they are more likely than not to have a right to the set aside.
We Can Provide You with Legal Protection and Comfort
Robbins Estate Law is a go-to resource for individuals in times of personal loss. Our attorneys have received top honors from the legal field. We also approach every case with diligence and compassion. If you have questions about your probate case, please call us today or contact us online to schedule a case review.
Resource List
- Texas Estates Code §309.054, link
- Texas Estates Code §309.051, link
- Texas Property Code §42.002, link
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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