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San Antonio Express-News
October 23, 2007

Limits on Probate and Executor

copyright 2007, Paul Premack

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Dear Mr. Premack: My parents both passed away more than ten years ago leaving a hand written Will witnessed and signed by two witnesses. I also have an affidavit of heirship about them. The Will states that my brother-in-law and I are to be executors, and that everything is to be divided equally between my sister and me. They had a home that is worth less than $30,000 and which we now wish to sell. Do we need to probate the Will in order to sell the house? DS

Texas law sets a very definite time limit on probate. To act as executors for the estate, you need to file an Application for Letters Testamentary with the court. However, that application must be filed within four years after the date of death. Since it has been ten years now, you can no longer use the powers granted to executors for selling the house.

Alternatively, you could either 1) offer the Will for probate as a Muniment of Title, or 2) rely on the affidavit of heirship that has already been created.

In order to probate the Will as Muniment of Title, you must prove to the court that the delay – waiting beyond the four-year period – was not a "default". I discussed the meaning of "default" in my May 29, 2007 column which you can read at by clicking here.

Recall that when a person dies and there is no Will admitted to probate, the state laws on intestacy determine the identity of the heirs. When your father died, state law said that your mother was his sole heir for their community property house. When she died, state law said that their children inherited the house in equal portions.

The affidavit of heirship is based on the state laws of intestacy and on a provision in the Probate Code designed to create a public record of the decedent’s family history. The facts in that history can then be combined with the law so that the public can draw the correct conclusions.

You and your sister could forgo probate entirely if you are the only two children in the family. Under the laws of intestacy, you already own the house and the affidavit of heirship is a public record establishing the truth of that assertion. But if there are additional children in the family who were left out of the Will, you may want to opt for probate as a Muniment of Title so that the focus stays on just the two of you. Under the Will, the other children are excluded but under the laws of intestacy they are included as owners of the house.

Dear Mr. Premack: When we had our will drawn up a few years ago, we literally drew straws about which one of our three grown children would be executor. We now realize we need to change this. Is there a simple way to accomplish this? All three children are in agreement on this. MEL

The appointment of your executor is contained in your Will. To modify your Will, you must create another written instrument (typically called a codicil) executed with like solemnities as your Will. The codicil would restate the paragraph in which you appoint your executor. It is important when you do this to be sure you include a backup executor (or two) in case your first choice dies or becomes unable to serve.

It is common now for lawyers to reproduce your entire Will, with the modification integrated into the new document, instead of writing a codicil. That way, there is but one written document to safeguard instead to two documents (the original Will and the codicil) that must be preserved and read together to be fully effective.

Prior Column: How Does Probate Work, part 2
Next Column: Am I Liable for Dad's Medical Bills?

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 attorney.  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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