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A couple years ago, the lender on my mortgage approached me about refinancing the house to lower my payment, but my wife passed away several years ago. Being in our early 30s, and poor as could be, a will wasn't something either of us had really worried about, and she passed away five months after we closed on the house.

Due to the house being in mine AND my wife's name, the lender required at least two people who were unrelated to us who knew both my wife and I for at least 10 years who would go before a notary and support my "right of heirship" request. This is practically impossible because we were together for almost 10 years when she passed away.

After she passed away, I adopted my stepchild and my wife and I had one child together.

Some sources indicate that since we bought the house together while married, when she passed it 100% became solely mine through "right of survivorship". However other sources I've found appear to indicate that ownership of our stuff is now split equally between me and the kids.

I am looking to put the house on the market and move back home to be closer to family within the next year, and would like to minimize the number of hoops I have to jump through to get out from the under house, which is why I'm looking for clarification on what my options are.

Do I have 100% control? Or do I need to find some people to say they knew both me and wife for over a decade?

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  • Not a lawyer or terribly familiar with Texas law, but are the children adults or minors? You haven't stated, and it seems like that might affect things.
    – nick012000
    Jul 25 at 8:51
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    At the time of my wife's passing, both were minors. My stepchild was 15 at the time (turned 16 4 months later) and my biological child was 5. They are now 21 and 10.
    – Bardicer
    Jul 26 at 13:07
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It primarily depends on the title that you have to the house: are you "joint tenants with right of survivorship". This could have happened when you bought the house; it also could have been done after the fact in various ways. In that case, the house is outside of your wife's estate (which, under the circumstances, is divided between children and you).

The lender might be confused about the status of the property, but they might be right, so the question is, what is your legal "interest" in the house, that is, does the title document say "tenants in common"? Assuming that the property is not recorded as JTWROS, then there are two matters to attend to. First, the lender may need to be satisfied, somehow, that they aren't taking a risk by refinancing when you aren't really the full owner. The second is clarifying actual ownership.

Estates Code 201.0002-.003 govern intestate succession with a surviving spouse, where the dividing question is whether it is a community estate or not, which then implies shares for children. In that case, the children are part-owners, so you need their consent to e.g. sell the house (that is, this is a complication that needs to be fixed).

Basically, you have to get a lawyer, and straighten this out.

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