This column first appeared in the San Antonio Express News and its MySA website on January 28, 2015.
Dear Mr. Premack: My granddaughter’s grandfather (on the other side of the family) died six years ago. I know he had a Will and I think he left some money in his Will for my granddaughter. However, her parents have never mentioned anything to her. She was his only granddaughter and her father was his only son. Additionally, her father had promised to help her with college tuition and to buy her a car when she graduated from high school three years ago but he has done nothing. Is there any way she can find out about her grandfather’s Will? Is there any way to get her father to help with her expenses? Her father is retiring soon and will be moving out of the country. – HL
Is the rainbow there or just an illusion? From the opposite side, there is no rainbow. Don’t count on intangibles if you seek a concrete benefit.
When her grandfather died, he was either testate (had a Will) or intestate (had no Will). If he was testate and if his Will was probated, then it is a public record at the courthouse in the county where he resided. Not all Wills need be probated; it depends on what assets were left and what contractual arrangements were made regarding those assets.
For instance, if her grandfather had only a few bank accounts and if he contracted with the bank to make those accounts “with right of survivorship” to his only son, then there would be no need for probate of his Will. The accounts would legally become the property of his son, who could claim them simply by presenting the death certificate. By law, your granddaughter would have received no part of her grandfather’s estate.
On the other hand, if her grandfather left accounts in his sole name and/or owned a house, it is likely the Will would need to be probated before those assets could be transferred to the new owner(s). The identity of the owner(s) would be recited in the terms of his Will. Thus, she should contact the local county clerk’s probate section to ask if grandfather’s Will is on record as being probated. If so, your granddaughter can go to the courthouse to read it and can even purchase a photocopy.
If grandfather died intestate (had no Will) then his assets would pass according to any contractual arrangements (like rights of survivorship) and, if not covered by contractual arrangements then his assets would pass via the Texas laws of descent and distribution. Under those laws, if he was widowed and had only one son, then his son was the sole heir to his testamentary estate. Your granddaughter could inquire with the probate clerk whether a Determination of Heirship or if a Small Estate Affidavit was processed through the court, or could check with the real property records at the county clerk’s office to see if an Affidavit of Heirship was filed.
While she checks the record, she should remember that speculation and empty promises are not legal commitments. Suspicion that her grandfather mentioned her in his Will does not mean that he did so, nor does it mean he ever made a Will. Her parents’ silence may mean nothing more than that they quietly handled the estate, that his son was his sole heir, and that they did not feel the need to involve their youthful daughter.
Finally, she needs to realize that once she turned 18 and graduated from high school, her parents were no longer legally required to support her. Father’s promise to pay tuition and buy her a car may have been misleading, and his failure to fulfill his promise may have been cruel, but he violated no laws. Once she became an adult, there was no way to force her parents to pay for her expenses.
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.TexasEstateandProbate.com or www.Premack.com.