top of page

Death of Both Parents Raises Probate Issues

Dear Mr. Premack: I am a Texas resident, and my sister lives in North Carolina. Our dad passed away March of 2011 and his Will names my sister as Executor. She has some health issues, and so far nothing has been done by her. My questions are: 1- Is there a time limit for probating a Will? 2- What effect does her living out of state have? 3- What is the cost and who pays the cost? 4- Our mom also passed away in October of 2012. Mom had no Will. What do we do with their property? They owned a home, a van and other items. Thanks. – BA

Your family has suffered a double loss, and in addition to the emotional impact, your parents’ deaths are legally interwoven as well. It is unusual that your father would have died testate while your mother died intestate. Ordinarily, when one spouse reaches out to make a Will the other spouse makes a similar mirror-image Will. I would suggest you do a thorough search to locate your mother’s Will, if one exists. Start by calling the lawyer who wrote your father’s Will to see if one was also written for your mother.

There is no reference in your letter about the instructions your father left in his Will. If we assume he left his entire estate to your mother, then probate of the Will is legally necessary before your mother would be treated as sole owner. Legal time limits for probate do exist, but your family is not yet blocked from probate. A Will must be offered for probate within 4 years of the date of death in order to have an Executor appointed. You are approaching the 2 year mark, and should act promptly.

The health issues your sister faces have caused her to delay probate. In that regard, there may be an option: Wills often name alternate Executors in case someone is disabled or elects to not serve. Look at your father’s Will. Did it name you as alternate to your sister? If yes, she may be willing to sign a waiver of her right to serve, allowing you to become Executor. Also, the fact that she lives outside of Texas legally disqualifies her from serving as Executor (unless she signs papers to submit herself to the jurisdiction of the Texas court). Hence, if you are alternate it would be possible for you to offer the Will for probate, ask to be Executor, and to inform the court that your sister lives out of state which makes her legally disqualified.

Your direct question about the cost of probate cannot be answered directly. All lawyers charge different fees; there is no uniformity. Some charge hourly, some charge a percentage and some charge flat fees. You need to select an experienced probate attorney of good reputation and ask about that specific attorney’s fees. (There are a few predictable expenses, like court filing fees and newspaper notice fees about which the attorney can tell you.)

Once it is established that your mother owned all of their assets (via probate of your father’s Will) then her intestate death must be addressed. If she had no Will, it may be necessary to have a court-supervised administration of her estate. Texas law allows you to become the court supervised administrator. Also, it may be necessary to go through a court proceeding to determine the identity of her legal heirs. There is no one authorized to sell or distribute her home, van or other items until some legal procedures take place. Again, select an experienced probate attorney, make an appointment, and start asking your questions.

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, November 30, 2012


bottom of page