Dear Mr. Premack: I am a Texas resident, and my sister lives in
North Carolina. Our dad passed away March of 2011 and his Will names my
sister as Executor. She has some health issues, and so far nothing has
been done by her. My questions are: 1- Is there a time limit for probating
a Will? 2- What effect does her living out of state have? 3- What is the
cost and who pays the cost? 4- Our mom also passed away in October of
2012. Mom had no Will. What do we do with their property? They owned a
home, a van and other items. Thanks. - BA
Your family has suffered
a double loss, and in addition to the emotional impact, your parents’
deaths are legally interwoven as well. It is unusual that your father
would have died testate while your mother died intestate. Ordinarily, when
one spouse reaches out to make a Will the other spouse makes a similar
mirror-image Will. I would suggest you do a thorough search to locate your
mother’s Will, if one exists. Start by calling the lawyer who wrote your
father’s Will to see if one was also written for your mother.
There is no reference in your letter about the instructions your father
left in his Will. If we assume he left his entire estate to your mother,
then probate of the Will is legally necessary before your mother would be
treated as sole owner. Legal time limits for probate do exist, but your
family is not yet blocked from probate. A Will must be offered for probate
within 4 years of the date of death in order to have an Executor
appointed. You are approaching the 2 year mark, and should act promptly.
The health issues your sister faces have caused her to delay
probate. In that regard, there may be an option: Wills often name
alternate Executors in case someone is disabled or elects to not serve.
Look at your father’s Will. Did it name you as alternate to your sister?
If yes, she may be willing to sign a waiver of her right to serve,
allowing you to become Executor. Also, the fact that she lives outside of
Texas legally disqualifies her from serving as Executor (unless she signs
papers to submit herself to the jurisdiction of the Texas court). Hence,
if you are alternate it would be possible for you to offer the Will for
probate, ask to be Executor, and to inform the court that your sister
lives out of state which makes her legally disqualified.
direct question about the cost of probate cannot be answered directly. All
lawyers charge different fees; there is no uniformity. Some charge hourly,
some charge a percentage and some charge flat fees. You need to select an
experienced probate attorney of good reputation and ask about that
specific attorney’s fees. (There are a few predictable expenses, like
court filing fees and newspaper notice fees about which the attorney can
Once it is established that your mother owned all of
their assets (via probate of your father’s Will) then her intestate death
must be addressed. If she had no Will, it may be necessary to have a
court-supervised administration of her estate. Texas law allows you to
become the court supervised administrator. Also, it may be necessary to go
through a court proceeding to determine the identity of her legal heirs.
There is no one authorized to sell or distribute her home, van or other
items until some legal procedures take place. Again, select an experienced
probate attorney, make an appointment, and start asking your questions.