This column first appeared in the San Antonio Express News and other Texas Hearst newspapers on August 3, 2018.
Dear Mr. Premack: Our parents owned several valuable real estate holdings. They both had poorly written wills, but the wills do identify us as the heirs. When mother died in 2014 her will was not probated by our father. Now our father has died. What course of action are we, the children, allowed under Texas law? – ELC
Whenever there are valuable assets, from owning a home to owning investment real estate or stocks, the owner(s) should have proper wills prepared by a qualified elder law attorney. Your parents owned several valuable properties and made wills which you identify as poorly written. If you, as a non-lawyer, can tell they are poorly written then the wills were probably not prepared by a lawyer at all. There is no use in scolding your parents as they cannot receive the message, but for others reading this: part of your responsibility as an adult is to prepare for your eventual death by having a properly prepared and valid estate plan.
You ask what you, as the surviving children, can now do? First, Texas law imposes a four-year statute of limitations on the probate of a will. Your mother died in 2014. If she died before August 2014 then the statute of limitations has expired. If she died after August 2014 the window for probate of her will is still open. Whoever is named in the will as alternate executor (after your father, who was likely named as first choice for executor) should immediately meet with a qualified elder law attorney about probate of her will.
If those four years and hence the statute of limitations have passed, still meet with a qualified elder law attorney. Her will might still be usable, but only under limited circumstances. Otherwise, when the statute of limitations passes you need to discuss the intestate passage of title to her half of their property and determine what legal steps may be adequate to establish who inherited when she died.
At the same time, you should be discussing probate of your father’s will with the qualified elder law attorney. Probate of his will is well within the statute of limitations. Whoever is named as executor of his will can hire counsel to assist with the probate.
Once the court has appointed the executor and issued letters testamentary, the executor has authority to fulfill the terms of your father’s will. All of your father’s debts and other claims against his estate must be settled, and mortgages may need to be paid or renegotiated. After his obligations have been met, then the remaining assets can be distributed according to the terms of his will – which ideally says that the remaining assets should be distributed among the children.
There were legal planning options which your parents could have utilized to avoid these legal entanglements. Some of their options were establishing a living trust, ensuring that they had updated and valid wills, utilizing survivorship agreements, or selling the properties prior to their deaths. Be sure that you and your siblings don’t leave your own families with a similar mess; make your own binding estate plans as soon as possible.
Paul Premack is a Certified elder law attorney with offices in San Antonio and Seattle, handling wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.