Wills are not Self-Enacting

This column first appeared in the San Antonio Express News and in other Hearst Newspapers on December 23, 2019.

Dear Mr. Premack: My uncle John was widowed without any children. He made a Will leaving everything to me and my sister, and naming me as Executor. He had just two siblings – our father, who died before the Will was made, and our other uncle, Gary. John died, and Gary was living in John’s house, so we just left everything alone, never took any legal action. Now five years have gone by, and my sister and I want to sell the house to pay off some loans. Uncle Gary says that he won’t allow it, that he’s going to stay in the house. How do we go about taking legal action to sell the house since the Wills says that it belongs to us, not to Gary? – A.W.


The most important pieces of information which you have overlooked are that 1) Wills are not “self-enacting”, 2) there is a legal time limit during which you must take legal action, and 3) state law provides a default inheritance pattern when there is no Will in the public record after someone dies.


Wills are not “self-enacting”. Although your uncle John made a Will with his private instructions leaving his house to you and your sister, you took no action to probate the Will. Think of it this way: when the Will was created, only a few people knew about it… John, his lawyer, you, maybe a few other family members. Compare that to what you know about real estate transactions: when you buy or sell a house, the paperwork (like the deed) must be recorded in the county’s public records to inform the public of your ownership.


Wills are similar: when the Will’s maker dies, the Will and its personal instructions must become a public record. Keeping it private is a disservice to the decedent and can harm the named heirs. Probate is the legal process of presenting the Will to the public, via hiring an attorney to present the Will to the Judge of the probate court. If the Judge finds that the Will meets all the necessary legal criteria, and there is no contest of the Will, the Judge signs a court order recognizing the Will and authorizing the nominated Executor to act for the estate.


There is a legal time limit for presenting a Will to the court. Under Texas law, the Will must be filed for probate within four years of the date the Will’s maker died. After four years, the court is forbidden to appoint the named Executor. The court is also forbidden to recognize the Will at all, unless a) those who are late in presenting the Will can adequately explain the delay, b) the heirs at law agree that the Will can be recognized, and c) the Will is limited to passing title to the named devisees. This conditional process is legally called “muniment of title”.


The state provides a default inheritance pattern. When the owner of something dies, ownership legally passes to someone else at that moment. The question is: who gets the property? When there is a Will and it is timely probated, the heirs named in the Will get the property. When there is no Will presented within the legal time limit, the heirs-at-law get the property. Texas has a statute which goes through a variety of family situations to recognize exactly who inherits by law.


In your situation, the Will was not timely probated, so the law defaults to giving ownership to the heirs-at-law. You ignored the instructions in uncle John’s Will beyond the legally allowed time limit. Thus, the default statute applies, reciting that when there is no surviving spouse and no descendants, the siblings of the deceased person are the heirs-at-law. That would be your uncle Gary, not you, because you failed to file uncle John’s Will for probate within the required four-year period.


If uncle Gary did not want the house, he could waive his rights and you could possibly still file the Will for probate as Muniment of Title. But if Gary does want the house and documents his claim with an Affidavit of Heirship recorded in the county’s real property records, your delay in probating the Will has given him a proper legal claim that takes priority over the time-limited un-probated Will. You should have seen legal counsel promptly after your uncle John died so that you could preserve your legal right of ownership over the house. Failure to realize that Wills are not-self enacting has lost you and your sister the inheritance.

Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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