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Why is the State disregarding Dad’s Will?

Dear Mr. Premack: My father had a will from 1984 that named me, his only daughter, as executor. He remarried later that year, but never changed the will. He died in December 2008 and his wife probated his 1984 will as a muniment of title. My question/concern is that Texas allowed this to occur without any notification to me, the named executor. Is this still the standard practice? It seems to me that Texas has a disregard for the Last Will and a person’s last wishes. He had 24 years during his marriage to change his will but he didn’t. Why was the Will not followed? – PW 

As I said in a column recently, the state of Texas via the county probate courts take the role of supervisor/referee in probate matters. Their job is to follow the laws of Texas. Your job is to understand the laws and to initiate any proceedings that you feel are appropriate, legal and necessary. Generally, the courts do not initiate action on their own.

In your case, your father’s 1984 Will was admitted to probate as a muniment of title. To do so, his wife represented to the court that, among other things, 1) she was an interested party, 2) there were not debts owed by your father to outsiders, and 3) that there was no need for appointment of an executor under these circumstances. His 1984 Will would have been filed with the court at the same time, with a request that whatever he instructed in the Will regarding inheritances be acknowledged as official.

The court would then issue a notice to the public that the Will has been offered for probate, stating in the notice that a hearing would be held on a particular date. Anyone who wanted to object, or to ask for a different process, could then file pleadings with the court asking for it to consider their request. You did not see the notice and did not ask for any other actions, so the court proceeded to approve the Will without appointment of an executor.

Had you consulted with a lawyer upon your father’s death, these rules would have been explained to you. You would have understood that the county does not initiate any probate action, but reacts to actions filed by interested parties. You could have filed your own application to be appointed executor, and the court, following Texas law, would very likely have approved your request.

What can you do now?

First, understand that the state has not disregarded your father’s Will. An order admitting the Will to probate as a muniment of title states that the heirs named in the Will do indeed become owner of whatever assets they are given under the terms of the Will. You own whatever your father gave to you under his Will (if he still owned it when he died). You should obtain, from the county clerk of whichever county the Will was probated, a certified copy of the Will and the Order admitting it to probate. You can use that as evidence that you own the items he gave to you.

Second, understand that if there is a need for you to take action as executor, you are still within the four year statute of limitations for becoming executor. You can petition the court for an order which activates your authority as executor until four years have passed from the date of his death (i.e., December 2012). The law gives you rights and powers, but you must take action to use those rights and powers. The state is not going to do it for you.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, October 21, 2011


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