San Antonio Express-News MySA.com Copyright 2011, Paul Premack
October 21, 2011
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.
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
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.
Disclaimer: This column answers a specific
legal question asked by an individual in Texas. The answer may or may
not match your individual situation. Be careful not to treat this
column as specific legal advice, as it may not meet your individual
needs. It may give you a solid basis for discussion with your own
You should consult with your personal
attorney before you take any action on this or any legal issue.
Also, please be aware that laws change, so this column is valid only
as of the date it was published. This communication does not create an
attorney-client relationship between the author and the reader.
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Paul Premack is Certified as an Elder Law
Attorney ( CELA ) by the National Elder Law Foundation as accredited by
the Texas Board of Legal Specialization and tthe ABA. He is licensed to pracice law in Texas.
Benjamin Premack holds a JD and a Masters Degree in International
Affairs, and is licensed to practice law in Washington State and in