Dear Mr. Premack: My parents both passed
away more than ten years ago leaving a hand written Will witnessed and
signed by two witnesses. I also have an affidavit of heirship about
them. The Will states that my brother-in-law and I are to be executors,
and that everything is to be divided equally between my sister and me.
They had a home that is worth less than $30,000 and which we now wish to
sell. Do we need to probate the Will in order to sell the house? DS
Texas law sets a very definite time limit on
probate. To act as executors for the estate, you need to file an
Application for Letters Testamentary with the court. However, that
application must be filed within four years after the date of death.
Since it has been ten years now, you can no longer use the powers
granted to executors for selling the house.
Alternatively, you could either 1) offer the
Will for probate as a Muniment of Title, or 2) rely on the affidavit of
heirship that has already been created.
In order to probate the Will as Muniment of
Title, you must prove to the court that the delay – waiting beyond the
four-year period – was not a "default". I discussed the meaning of
"default" in my May 29, 2007 column which you can read at
by clicking here.
Recall that when a person dies and there is no
Will admitted to probate, the state laws on intestacy determine the
identity of the heirs. When your father died, state law said that your
mother was his sole heir for their community property house. When she
died, state law said that their children inherited the house in equal
The affidavit of heirship is based on the
state laws of intestacy and on a provision in the Probate Code designed
to create a public record of the decedent’s family history. The facts in
that history can then be combined with the law so that the public can
draw the correct conclusions.
You and your sister could forgo probate
entirely if you are the only two children in the family. Under the laws
of intestacy, you already own the house and the affidavit of heirship is
a public record establishing the truth of that assertion. But if there
are additional children in the family who were left out of the Will, you
may want to opt for probate as a Muniment of Title so that the focus
stays on just the two of you. Under the Will, the other children are
excluded but under the laws of intestacy they are included as owners of
Dear Mr. Premack: When we had our will
drawn up a few years ago, we literally drew straws about which one of
our three grown children would be executor. We now realize we need to
change this. Is there a simple way to accomplish this? All three
children are in agreement on this. MEL
The appointment of your executor is contained
in your Will. To modify your Will, you must create another written
instrument (typically called a codicil) executed with like solemnities
as your Will. The codicil would restate the paragraph in which you
appoint your executor. It is important when you do this to be sure you
include a backup executor (or two) in case your first choice dies or
becomes unable to serve.
It is common now for lawyers to reproduce your
entire Will, with the modification integrated into the new document,
instead of writing a codicil. That way, there is but one written
document to safeguard instead to two documents (the original Will and
the codicil) that must be preserved and read together to be fully