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San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law


San Antonio Express-News
August 19, 2003

More on Muniment of Title

copyright 2003, Paul Premack

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Dear Mr. Premack: My Dad passed away about 2 years ago. He named all 6 of his children in his Will "share and share alike," and named my sister as Executor. Dad owned 3 houses. We have been waiting patiently for my sister to do the "right thing". However, we recently found out that the Will was probated as a Muniment of Title last year by my older brother. He changed the title to one of the homes to the estate's name, but not the remaining two. I obtained a copy of the judge's order. My questions are: Is that all I need to change the other two into the estate’s name? Could a possible decision have been made by the judge that could have granted the other two houses to my sister, the executor, and my big brother? If so, wouldn't that be in the probate file, which is public record? Aren’t heirs supposed to be notified by a constable of the filing of the will for probate? It appears that the "notice" for Dad's will being probated was a simple posting at the county's bulletin board. Thank you for your reply. – D.C.

Let’s go through your questions one at a time.

First: is the Order Probating your father’s Will as a Muniment of Title all you need to change the other two houses into the estate’s name?

Answer: Yes, the Order is the active legal document that changes ownership of the houses. But the court Order did not change ownership into the "estate’s name." Rather, it changed ownership directly to the heirs named in the Will.

That is because the Order legally authorizes anyone who acts as registrar of an interest in any of the decedent’s property (like the county clerk’s real property records) to treat the people named in the Will as though record title was vested in their names. Translation: under the Order, you and your siblings own the three houses as equal partners. I don’t know what your brother thinks he did to change that first house "to the estate’s name" but you should check closely, since it may not have been proper.

Second: could the Judge have decided to grant the other houses to your sister, the Executor or to your brother?

Answer: No. When the Judge admits a Will to probate, she typically does not rule on the identity of the heirs or on what assets they are to receive. The terms of the Will determine those distributions. The Judge would rule on the Will’s overall validity if someone contested it. If it was thrown out as invalid, then the Judge would determine the identity of the heirs under state law. That ruling would be in the probate file as a public record.

Third: Aren’t heirs supposed to be notified by the constable when the Will is filed for probate?

Answer: No. The probate code requires that a notice be posted at the courthouse for ten days prior to the hearing. There is no personal service of citation by the constable or sheriff in a probate matter. The posting of notice sounds like it was proper in your father’s case. That is why anyone interested in an estate should monitor the courthouse notice board – there is not going to be any other type of legal notice of the proceedings.

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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.

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