PAUL PREMACK, JD*
8031 Broadway
San Antonio, TX 78209
*Licensed in Texas
BENJAMIN PREMACK, JD** 
11900 NE 1st Street
Bellevue, WA  98005
**Licensed in Washington State


 

San Antonio Express-News
May 29, 2007

Overcoming the Statute of Limitations on Probate

copyright 2007, Paul Premack

expressBanner2.jpg (3631 bytes)
Dear Mr. Premack: My grandmother and her second husband made Wills with an attorney. He died of cancer in 1997. She got Alzheimer’s and died the next year. They left everything to my father but the attorney did not file either Will in court. My father always cared for them both, and since they died he has rented their house out to cover its taxes and upkeep. Apparently because nothing was filed in court it is as though the Wills do not exist. Now my father’s sister is demanding the house be sold and the money split among all five siblings. Is there anything my father can do to make the Wills stand? – DMB

Your grandparents’ attorney was only responsible for filing their Wills for probate if he was hired and paid to do that task. In the Wills, they would have named an Executor (perhaps your father) who is responsible for locating and hiring an attorney to help with the legal process. Another “interested party” (like an heir named in either Will) can also initiate probate, but the process is then handed over to the Executor.

A Will must be filed for probate within four years after the date the testator died. This statute of limitations has only one exception: if the person applying for probate was not “in default” then the Will may be offered to the court as a muniment of title. Default means failure to use reasonable diligence. It may involve the amount of time that has passed, lack of knowledge about the law, and discovery of new information.

For instance, in the case of Kamoos v Woodward, the Will was not offered for probate by the surviving spouse until five years after her husband died. She had the Will in her possession the whole time, but the only assets that she knew about were the bank account and the home. During the fifth year, she was informed that her husband had some mineral rights, and she promptly filed the Will for probate. The court found that she was not in default and allowed the will to be probated as a muniment of title.

In your family’s situation, ten years and nine years respectively have now passed. No new assets were suddenly located. Your father may have misunderstood the law, or may have been told that probate was not necessary; even so, he may have a difficult time proving to the court that he is not in default.

Even if the court decides he is not in default, another law requires that each of the intestate heirs receive notice the Will is being offered for late probate. In your grandparents’ cases, the intestate heirs certainly include all of their respective children. Those heirs have the opportunity to appear in court, to contest the Will, and to claim that there is default for not presenting the Will within the four-year limit. Your aunt might do so to preserve her claim to the property.

If the Will cannot be probated, its terms are indeed ignored. In that case, the laws of intestacy apply. Your step-grandfather’s share of the community property (the house) would have passed to your grandmother – unless he had any of his own children from a prior marriage. In that case, his half of the community estate passed to his children in 1997.

Upon your grandmother’s death whatever part of the house she owned passed via intestacy to her children. A review of the family tree would be necessary to give the exact outcome from the general intestacy rules, but your father would not end up as sole owner of the house. His siblings have a strong legal position, and unless he can establish he did not default in his failure to present the Wills for probate, he will not get the entire house.
Prior Column: Who can File Will for Probate?
Next Column:
How Does Probate Work? (Part 1)
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

Submit a Question

texscal.jpg (5258 bytes)

 

NOTICE: The fact that you read this website does not make you our client nor us your attorneys. The material and information on this website and associated blogs are provided strictly for informational purposes and are not legal advice. This site does not create an attorney-client relationship between our attorneys and the users of this site. Visitors to this site should consult a licensed attorney before taking any legal action.