Dear Mr. Premack: My mother and father owned a parcel of land just
outside the city. They both had wills leaving everything to each other, or
if they both died then the land would go to my sister. Dad died in 1988
but mom did not do anything with his Will. My sister moved in with mom to
help take care of her. Mom died in 2001, and my sister talked to a lawyer
about probate of the Will then but she never got around to doing it. My
sister died two months ago. She is divorced and has two grown children who
she has not seen in years. I’ve asked everyone if my sister made a Will,
and looked everywhere, but have not located a Will. How big is the legal
mess? What is the status of the land? What should I tell her kids to do
next? – T.N.
To understand the status of the land, you first need
to understand probate law and intestacy law. Wills exist for the purpose
of passing assets to specified heirs when the Will’s maker (the testator)
dies. People often superstitiously avoid making a Will, fearing that it is
bad luck. Nonsense! Making a Will does not cause death, and the
superstition is just an excuse to avoid thinking about death. A Will is
not about death; it is about responsibility, caring for our families, and
properly handling our financial business.
Vital as a Will may be,
it is equally vital that the survivors understand how to utilize the Will.
When a Will is made, it is a private document. The public is unaware that
it exists, and only a few people might know what it says. Thus, when the
testator dies, the time has come to make the Will into a public document.
A Will that says “I leave my land to my daughter” has no effect if it
stays in the drawer at home, hidden from view.
To utilize the Will, it must be filed for probate in the county where the
testator lived. Public notice of the Will must be given, and a Judge must
rule that the Will is legally valid. The person nominated as Executor is
then given full authority to act for the estate, including transferring
title to real estate to the identified heirs. If the Will is not admitted
to probate within four years of the date of death, the law forbids
appointment of any Executor. The decedent is treated as though there was
no Will. In that case, the laws of intestacy determine the identity of the
heirs. With rare exception, failure to probate a Will in the time allowed
is equivalent to dying without a Will.
Your father died in 1988.
His Will was not probated. In 1988, intestacy law said that his half of
the property passed to the children (you and your sister). His wife did
not receive his half. [That law was changed in the early 1990’s, and
intestate death under the new law usually gives the land to the surviving
spouse.] When your mother died in 2001, her Will was not probated either.
The intestacy law also left her half of the property to the two children.
Thus, you own half and your sister owns half of the land. This is contrary
to your parents’ Wills, but the Wills were not probated and have no
Your sister died this year, intestate. Applying the law to
the facts, we would conclude that her half of the land passes to her two
children. You and they are thus co-owners.
Once again, this legal
conclusion is based on facts that are not in the public record. Title to
land is cataloged and recorded in the County Clerk’s office. Some legal
proceedings must be held to properly document the change in title. For
your parents, who died years ago, “affidavits of heirship” may create that
record. For your sister, who died recently, it may be necessary to hold a
“determination of heirship” in court along with administration of her
estate to handle any creditor’s claims. You and her two adult children
should talk to a certified attorney about coordinating your efforts on
those legal steps.