Can Share of Parents’ Home be Grabbed by Brother?

Dear Mr. Premack: A few years ago, my mother signed a deed giving my brother her interest in her homestead. My father had passed away 25 years ago, with a Will that was never probated. About 2 months ago, my mother also died. Now, although the 4 year statute has passed for probating dad’s will, my brother wants to probate dad’s will as muniment of title so he can obtain full ownership of the house under a 1993 law that gives all community property to mother. If he does this, will I lose whatever interest I owned when dad was intestate? –A.G.

Here is the history of the law to which you refer: before 1992, when a spouse died intestate, the share of a home owned by the deceased spouse passed to the children of that marriage. The legal concept was based in community property law, with the idea that the surviving spouse was cared for well-enough by retaining the half ownership already held. After 1992’s law change, when a spouse died intestate, the share of the home owned by the deceased spouse passed to the surviving spouse (unless the deceased spouse had children from a different marriage).

The law change was not retroactive. The law as it existed on the date of a person’s death was applied to that person’s estate. If you died intestate before 9/1/1992 the old law applied. If you died intestate after 9/1/1992 the new law applied.

Of course, that law – new or old – only applies to a person who dies intestate. Your father had a Will, but it was never offered for probate. You say, as if it were fact, that the four-year statute of limitations for probate applies. In reality, the statute of limitations does not apply to the probate of a Will; rather, it applies to the issuance of letters testamentary (that is, the appointment of an Executor). A Will can still be admitted to probate after a four-year lapse, but only as a “muniment of title”.

That is what your brother is proposing. In the process of offering your father’s Will for probate as “muniment of title” there will be no Executor appointment. The four-year statute of limitations does not apply. But two other laws do apply, and they limit the actions your brother can take. They are:

1. He will need to prove to the court’s satisfaction that the delay in probating the will is not a “default”. This can be fairly easy to establish if the deadline is missed by a short time, but is increasingly difficult to prove when 25 years have passed.

2. He will need to obtain waivers from the heirs at law (the people who inherited under the intestacy law). If you refused to waive your rights under the intestacy laws, the court should refuse to admit the Will to probate as a muniment of title.

If your father’s Will is not admitted to probate, then since your father died in 1988, the old intestacy law applies. Your brother cannot take advantage of the new law; your mother never became owner of her husband’s half of the house (because she failed to probate his Will) and she could not deed to your brother what was not hers to give. Your father’s half interest in the home passed at the time of his death in equal shares to his children. You own your share. Your brother owns his share plus the half share gifted by your mother. He can discuss buying your portion if you are agreeable to selling it to him, but he cannot use the law to divest you of your share without your consent.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, April 15, 2013

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