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Failing to Probate a Will leads to Ownership Distress

This column first appeared in the San Antonio Express News on January 13, 2016.

Dear Mr. Premack:  This is a long story. I do not get along well with my granddaughter, who I finally realized has been taking unfair financial advantage of me. I only had one son, and he had only the one daughter, and my son died two years ago. His wife has not done anything with his estate because he had not made a Will. My granddaughter had a son many years ago – he is now 23 – and I have a wonderful relationship with this great grandson. I want my house to go to my great grandson when I die, but his mother (my granddaughter) insists that I leave the house to her. So there’s a conflict in our desires. To add more information, my husband and I purchased this home in the late 1960s and he died in late 1992. He had a Will, but I never did anything with it and don’t even know where it is anymore, and his name is still on the property tax bill and deed. With all that, my question is how do I go about leaving my house to my great grandson? – M.S.

Let’s start with the earliest date in your history. Your home was purchased in the late 1960’s by you and your husband, and would have been your community property. You owned a ½ interest and he owned a ½ interest. He made a Will – probably leaving his ½ to you – but after he died in 1992 you thought that it was not necessary to take any legal action.

You were incorrect. By assuming that no action was needed, his Will remained private (that is, the public never became aware of his instruction to leave his ½ to you). When four years had passed, the opportunity to probate his Will also passed due to the statute of limitations. Thus, he is treated as though he died intestate, which means that state law determined who received ownership of his ½.

Texas law in 1992 was different that it is in 2016. Until September 1993, Texas intestacy law said that his ½ did not pass to you. The law assumed that you could prosper on the ½ you already owned. Instead, the law left his ½ to your son. So, legally, since 1992 your son has owned ½ of your home and you have owned the other ½. This is true even though no paperwork was done and even though your son was unaware that he owned part of your home.

When your son died in 2014, also intestate, what happened to his ½? Don’t assume that it went to his wife. In fact, your son’s interest in your home was his separate property since it was inherited from his father. Texas intestacy law says that separate property real estate passes to the children, no the spouse. So your son’s share of your house has passed to your granddaughter (and her mother has what is called a “life estate” in 1/3 of that ½). Sounds complicated, and it is. It is also exactly the scenario that you wanted to avoid.

How did you get into this awful situation? You made incorrect assumptions about how the law operates and failed to take timely action to protect yourself. If you had probated your husband’s Will in the first four years after his death, you would own 100% of your home. If your son had made a Will leaving his assets to his wife, after his Will was probated then she would own his ½ instead of your granddaughter.

What can you do now? First, the situation must be clarified for the public record. It may be appropriate for you to hire an experienced probate attorney to prepare an Affidavit of Heirship. The Affidavit will establish that your husband’s ½ of the house does not belong to you. Your son’s wife should then take legal action on his estate; perhaps an Affidavit of Heirship or perhaps a Small Estate Affidavit. Then, you should approach your daughter-in-law and granddaughter to request that they deed their interests back to you. You cannot force them to do so. If they refuse, then you can still make a Will giving the ½ which you own to your great grandson so long as you understand that he’ll be a co-owner with his mother and grandmother.

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 or


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