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”.