John and Marilyn Jones lived in a rented home with Tommy, their incapacitated 42 year-old son and Jane, their 39 year-old unmarried daughter. Since the Joneses were renting, when John died at age 78, the couple had no homestead. John left all of his community property to Beverly, his daughter by a previous marriage. What are Marilyn, Tommy and Janet’s rights vis-a-vis John’s estate?

The Texas Estates Code §353. 051 (a) (1) provides that the probate court shall set aside the homestead for the use and benefit of the decedent’s surviving spouse and minor children. The fact that John’s estate has no homestead, does not leave Marilyn high and dry. Marilyn, as surviving spouse, can request an allowance from the estate of up to $45,000 to make up for the absence of the homestead. Marilyn may keep any amount allowed to her even after the estate administration is complete.

Texas Estates Code, §353.051 (a) (2) provides that the probate court will set aside certain property for use of the surviving spouse, minor children, adult incapacitated children or unmarried children living at home. The court must set this property aside after approval of the inventory (or affidavit of property in lieu of an inventory).  Marilyn may, before the inventory (or affidavit in lieu of inventory) is filed, make an application to have set aside all the property in the estate that she claims is exempt property. She must file a verified affidavit with her application. Texas Estates Code §353.051 (b) (1).

The property set aside, not to exceed the value of $100,000.00, includes: (1) home furnishings, including family heirlooms; (2) provisions for consumption; (3) farming or ranching vehicles and  implements; (4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession; (5), wearing apparel; (6) jewelry, not to exceed 25% of the aggregate $100,000.00; (7) two firearms; (8) athletic and sporting equipment, including bicycles; (9) a two-wheeled, three-wheeled or four-wheeled motor vehicle for each member of a family who holds a driver’s license or who does not hold a driver’s license but relies on another person to operate the vehicle for the benefit of the non-licensed person; (10) animals and forage for their consumption, including: (a) two horses, mules or donkeys and a saddle, blanket and bridle for each; (b) 12 head of cattle; (c) 60 head of other types of livestock; and (d) 120 fowl; and (11) household pets.  Texas Property Code §42.002 (a).

The executor or administrator of the estate is required to deliver the exempt property that has been set aside in accordance with Texas Estates Code §353.052 (a) to the surviving spouse if the children involved are children of the surviving spouse and the decedent, as they are in the case of the Joneses. Special rules apply if the children are decedent’s, but not children of the surviving spouse.   

When the administration of the estate is completed, the property is distributed in accordance with the decedent’s will.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.