How can I lay claim on my brothers house?
How can I lay claim on my brothers house? He died intestate and was divorced from the woman who claims that they were common law but slept in separate rooms and didnt find him dead until a day later. The house is in his name only. Were in Texas. Im very sorry for your loss. Texass intestacy law makes a decedents spouse and children the immediate heirs. If there are none, then the decedents parents are the heirs. If one or both parents are deceased, then the decedents siblings become heirs. Im presuming your brother had no born (in or out of wedlock) children and no adopted children, and both of your parents are deceased, leaving only siblings. The first problem I see is the ex-wifes claim that she and your brother formed a common-law marriage after they divorced. Texas law permits couples to form common-law marriages. The burden is on her to prove that they had a valid common-law marriage. The first and most important thing she must prove is that after the divorce, she and your brother agreed to be married again. That means that as of a certain date, they said something to the effect of, were spouses again. This is very difficult to prove. Beyond that, she has to prove that they lived together as spouses, not as roommates. Sleeping in separate rooms suggests they werent spouses, but she may have an explanation for that. Finally, she has to prove that they both presented themselves to the world as spouses again. Frankly, its not an easy task. If her claim is based merely on the fact that they continued to live in the same house, she cant prove a common-law marriage; merely living together isnt enough. If she successfully proves to the court that a common-law marriage existed, then shell be entitled to inherit all of the community property and half of your brothers separate property; his siblings will get the rest. But if she fails, then his siblings will inherit all of his property in equal shares. You dont need to wait for his ex-wife to stake a claim. You can file a petition in the probate court of the county where he died; no will is required and you have standing to file. The courthouse website should have a form for the petition you need, or else you can contact the probate court for help. That will get the probate for your brothers estate started. The ex-wife will most likely file another petition claiming the common-law marriage. Depending on what she claims in that, the court may dismiss it or hear it. Theres no certainty what will happen next. If you can, get yourself a local lawyer who practices wills and estates law to help you fight the ex-wifes claim of common-law marriage.