Texas Probate Laws & Homestead Rights for an Unmarried Child

By Heather Frances J.D.

If your family depends on you for support, your death may be especially hard on them because they will lose your financial support in addition to losing someone they love. The home your family lives in, called a homestead, may be financially protected after your death. Texas provides special rules that may protect your home from being seized and sold to pay your debts after your death, saving your unmarried children from being forced from their home.

Qualifying as a Homestead

Your property will not qualify for homestead protections unless it meets Texas’s homestead definition. For urban locations, this means it must be a home or home and business and must not have more than 10 acres of land. For rural locations, a family homestead is 200 acres or less and a single adult homestead is 100 acres or less. Homesteads include improvements, such as buildings, located on the land. Property may be classified as a family homestead even if the family is atypical, such as a grandmother caring for her grandson, as long as you support that family and they depend on you.

Creditor Protection

If your land qualifies as homestead property, Texas provides two different types of protections: protection from creditors’ claims and protection of the right of occupancy. Protection from creditor claims is automatic if you were using and occupying the property at the time of your death. Except for seven specific exceptions, such as a purchase-money mortgage on the property itself, your homestead is not liable for payments of any debts of the estate. This means your homestead cannot be sold to pay your credit card debt, for example, even if that means your estate does not have enough money to pay that creditor.

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Right of Occupancy

Homestead property also carries the right of occupancy, meaning your spouse and your minor children have the right to live on that property regardless of what your will says. This right is separate from creditor protection and terminates when your spouse dies, sells her interest in the homestead or abandons the homestead. Your minor children have this occupancy right, too, but their rights terminate when they are no longer minors.

Unmarried Adult Children

Your surviving spouse and minor children are entitled to protection from creditors’ claims against your homestead property as well as the right of occupancy. However, adult unmarried children living on your homestead property are only protected from creditors’ claims. Thus, if you do not have a surviving spouse or minor children and leave your homestead property to your unmarried adult child living with you, he will inherit it free and clear of creditors’ claims. If you leave it to someone else, he does not have the right to continue to live there since he has no right of occupancy.

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