This column first appeared in the San Antonio Express News and other Hearst Newspapers on June 11, 2019.
Dear Mr. Premack: My mother-in-law left her home to her three children. There is no mortgage. My wife’s sister Jane is Executor of the Will. My wife Liz died, and left everything she owned to me in her Will, which I probated and became Executor. We had rented that house for two years, but two months after my wife died her sister told me to move. Then she left the house vacant for two more years. I want to cash out my portion of the house. Can I buy them out with a partition? - AV
When a Will is probated, the Executor takes an oath to fulfill its terms. However, Texas law does not put the Executor on a specified timeline to accomplish the distribution of assets. Still, an Executor cannot wait forever and practically, your wife’s sister as Executor should have taken action years ago.
Her obligation under the Will is to distribute ownership of the house in equal shares to the three adult daughters. She could accomplish that by selling the house and distributing the money, or she could have signed an Executor’s Deed removing the house from the estate to vest title in the name of the three daughters. I can tell from your letter that the house was not sold, but cannot tell whether it is still in the name of the estate or has been transferred to the adult children.
When your wife died, she left a Will naming you as sole devisee to her assets. Since she outlived her mother, she is entitled to a ⅓ interest in the house under her mother’s Will. As her Executor, you have the power to claim and transfer that ⅓ interest to yourself as devisee. [Note that if your wife had died before her mother, then the terms of her mother’s Will would have dictated the outcome. If her mother had said, for instance, “If my daughter Liz dies before me, her share will pass instead equally to my other daughters” then you may not have received the same interest in that house.]
Since you do, however, legally have a ⅓ interest in the house, your rights are determined by how title is held. If title is still in the estate, then Jane as Executor still controls the house. You cannot yet file for partition of the property. Instead, you must have your lawyer file a motion with the court questioning why the property has not yet been distributed. The court should require her to sell or distribute title to the property after so long a delay.
If she has already signed an Executor’s Deed conveying the property to herself, your wife, and the other sister, then 1) you should ask your lawyer to file an Executor’s Deed in your wife’s estate showing that you own her ⅓ interest in the house, and 2) you have equal rights with the two sisters to use and occupy the property, or to come to an agreement regarding the sale of the property.
If you ask the two sisters to sell and they refuse, then you can invoke the Texas Uniform Partition of Heirs Property Act. Refer to my column of November 9, 2018 for details on that law, when it applies, and how it is used.
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.Premack.com.