Dear Mr. Premack: My mother passed away in 2006 and named my older sister Executor. Now it’s 2014 and mother’s Will has not been probated. The house we grew up is rotting away and unoccupied. What rights do my younger sister and I have? How can we get all of this settled considering that our older sister moved out of state in 2009 and has yet to probate our mother’s will? – CRT
You have likely read in my previous columns that there is a time limit in Texas for the appointment of an Executor under a Will. The legal limit is four years from the date of death. Your older sister did not offer your mother’s Will for probate within the legal time limit, and thus the law forbids her and anyone else from becoming Executor of your mother’s estate.
If your older sister had probated the Will and become Executor, she would have been legally responsible for doing as the Will instructed. Assuming that the Will would have left the house in equal shares to all three daughters, after probate of the Will she would have filed an Executor’s Deed with the local county clerk’s office. That deed would have transferred ownership to the three daughters and would have informed the public that your mother is no longer owner of the house.
However, because your older sister failed to perform her responsibility, the public record still shows your mother as owner of the house. To settle the estate (now that the legal four year limit for appointment of Executor has expired) and to change the public record to identify the new owners of the house, you must consult with a skilled probate attorney to choose between three legal options:
You can obtain custody of your mother’s original Will and have your attorney offer it for probate as a Muniment of Title. Since this is being done after the four-year time limit, you must prove that you are not “in default” because of the lengthy delay. Your attorney must get all of the heirs at law to agree to the Muniment, or must serve them with notice of the proceeding. If you can overcome the legal hurdles, you will obtain a court order which transfers ownership of the house to the devisees named in your mother’s Will.
You can treat your mother as having died intestate (without a Will) and have your attorney seek distribution of her homestead under a Small Estate Affidavit. The four-year limit for probate legally allows the intestate heirs to claim ownership of the house. If all three daughters are the only children of your mother and you are all from the same father, and your mother was not married when she died, then the three daughters are heirs at law. A Small Estate Affidavit can change title to homestead real estate, and results in a court-approved transfer of ownership to the heirs at law.
You can treat your mother as having died intestate and have your attorney seek distribution of her estate under an Affidavit of Heirship. This procedure is never reviewed or approved by a court, but is generally accepted by title companies as establishing the identity of the heirs at law as the new owners.
You are unable to do anything with the house until after the public records are changed to show you have an ownership interest. After one of the above legal actions is completed, you may be an equal co-owner of the house with your two sisters. Each of you then has full legal right to occupy and use the property, and to share the expenses for upkeep and taxes on the property. You and your sisters can then agree to restore the house, agree to sell it as-is, or agree that one of you will buy out the others’ shares.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, January 20, 2014