San Antonio Express-News

When can shared home be sold after partner’s death?

- Ronald Lipman The informatio­n in this column is intended to provide a general understand­ing of the law, not legal advice. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of

Q: I co-own a home with my same-sex partner, and we have two transfer on death deeds that give our interests to each other. When one of us dies, how long must the survivor wait to sell the home? Also, is it true that in Texas no possession­s, property or financial assets may be transferre­d, liquidated or sold for 90 days after the will is read?

A: Unless your transfer on death deeds provide otherwise, there is a 120-hour (five-day) wait after one of you dies before the survivor technicall­y inherits the interest of the one who died. After that, the survivor can sell the house.

The 90-day wait you are asking about is probably related to a will that has a 90-day survivorsh­ip clause. Wills often contain survivorsh­ip periods, but 90 days is typically found only in the wills of wealthy people who are creating longterm trusts. A financial account passing under a will would be subject to this same survivorsh­ip period. However, if a person is named as a beneficiar­y on an account, or that person is the survivor on a joint account with right of survivorsh­ip, the survivorsh­ip period in the will would not apply.

Q: You recently answered a question from a married couple leaving their estate to charity. Could they store their wills with the charity? If they inform the charity that it is the intended beneficiar­y, and they tell the charity, which they have named as executor, where they are keeping their wills, would that help ensure their funds get to those they intended to benefit? Also, can they name the CEO of a nonprofit to serve as executor?

A: It would be risky for a married couple to store their wills with a charity. The documents might get lost or destroyed. The couple might change their minds and write new wills. The charity might never find out the couple has died. There are simply too many problems that could arise.

Yes, they should inform the charity of their intentions, and they might want to provide names and locations as you suggest. Some charities will want to know how much to expect, and they may then begin pushing for the couple to advance some of that future gift now. For some people, that can be a little off-putting. For others, they might agree to start making gifts now rather than later.

In theory, the married couple could name an employee of the charity to serve as their backup executor, but that person may no longer be there by the time the job presents itself. The charity may also prohibit its employees from serving as executors and trustees, so the couple would want to check first. If the charity doesn’t object, the couple could name the “then-serving president/director” of the charity, rather than a named person, but I have never seen a will written this way.

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