Updated: Feb 11
This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 9, 2020
Dear Mr. Premack: I have what may be an odd question. My good friend died more than 20 years ago. He had no family, but in his Will he left me some stock. I was not in charge then, as my friend was about 40 years older than me and named another man close to his age as his executor. I never really followed up about the stock certificates. A few weeks ago, I got a call from a corporate officer who said they were trying to buy-back all of the stock shares and offered a sizeable amount of money. I started to look for the stock, realized I don’t have it, that the executor has now died, and that my good friend’s Will was never probated. So, my question is how I can get the stock now so I can sell it? Thanks for your input. – H.D.
The law in Texas puts a soft cap on how long a Will can remain un-probated after its maker dies. The cap is generally four (4) years from the date of death. If it is not admitted to probate by then, the law presumes that there was no Will at all which means that the resources pass according to the intestacy law and not according to the terms of the Will. It allows family members to step forward to claim ownership after the four-years have passed.
The four years is a soft cap because there is a limited legal exception. When a Will is offered in court for probate after four years, the court can allow the Will to pass title to the people named in the Will. The court is forbidden, however, to appoint an executor. Further, the court must find that the person offering the Will was not at fault for missing the four-year deadline. Finally, the law requires that any intestate heirs agree to allow the probate and waive any financial benefits they may have accrued in the absence of the probated Will.
You were not to blame for the delay in probating the Will because you were not the nominated Executor. But to offer the Will, you must provide the original Will to the court, or if it cannot be found you must 1) provide evidence of what the Will said (like presenting a copy of the Will), and 2) prove that the decedent did not revoke the Will prior to his death. Then you must provide waivers from his intestate heirs if they can be found and if they are willing to give the valuable asset over to you.
In this instance, you said that your friend had no family. The law gives inheritance priority to the spouse, children, and grandchildren. If there are none, the law looks for parents and siblings, or nieces and nephews. If there are none, the law reaches deeper into the family tree for other kin. It is possible your friend had someone who was descended from the same set of great-grandparents. This is why there are businesses and investigators that search for unknown heirs.
The oddest point to your story is that you were actually contacted by the corporation to offer a buy-back of those shares. They had some record somewhere that identifies you. If they just have a copy of the un-probated Will it is not much help due to the factors I just outlined. But they may have something more, and you must contact them to ask how they found you and why they think you own the shares.
Possibly your friend had arranged a “transfer on death” designation in your favor. You would have become owner of the shares by virtue of that contractual designation instead of the terms of the Will. However, if that were the case the corporation would likely have contacted you years ago when they found out about his death.
Your task is to establish some legal path to ownership of those shares. You may not be able to do so based on the Will alone because too many years have passed without legal action. The moral to your story is this: when someone dies with valuable assets, the interested parties must take legal action to vest their inheritance. If the Will probate is delayed too long, or if it is never probated, the heirs named in the Will can lose valuable assets due to that inaction.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.