San Antonio, Texas (210) 826-1122
Bellevue, Washington (425) 296-2919



PAUL PREMACK, JD, CELA*
8031 Broadway
San Antonio, TX 78209
*Licensed in Texas
BENJAMIN PREMACK, JD** 
11900 NE 1st Street
Bellevue, WA  98005
**Licensed in Washington State & Colorado


San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law

 

San Antonio Express-News
February 5, 2008

Devisees Can Find Out What Will States

copyright 2008, Paul Premack

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Dear Mr. Premack: My step-grandfather passed away three months ago and his children say that in his Will it states he didn't want the Will to be read till one year after his death. What rights does my grandmother, who was married to him for over ten years, have to get this Will read before the one year anniversary of his death? RBJ

When someone makes a Will, it can dictate many terms and various conditions for the receipt of benefits. It is not unusual for a Will to impose constrains on when and how an heir will receive various assets. Those constraints, however, can only be followed if the wording in the Will is known to the public (and to the devisees) so it would be very unusual for a Will to say that its terms should stay hidden for a year.

A Will becomes public though the probate process. Texas law says that any interested person can file an application with the court asking for an order admitting the decedent’s Will to probate.

Your grandmother definitely qualifies as an interested person, which by law includes all heirs, devisees, spouses, creditors, or anyone who has a claim to any part of the estate. She is obviously the spouse, but she might also be a devisee (a person named in the Will as entitled to some assets) and she might also be an heir (a person who by law would inherit in the absence of the Will).

Her husband’s children have so far refused to give her or even show her the Will. How can she file it for probate unless she has possession? The law allows her to file an application to have the Will admitted to probate even if she does not have possession of the Will. Her attorney would then contact the children who say they have the Will to instruct them to deliver it to the court.

If the children refuse (even on the grounds that the Will says that it should not be read for a year) then your grandmother can file a sworn complaint with the court. An order will be issued requiring them to appear in court to explain why the Will should not be given to the court for probate.

If the children still refuse to deliver the Will or to provide a good reason why it should not be delivered, the judge can order the arrest and imprisonment of the Will’s custodian. Having those consequences spelled out may be enough to motivate the children to cooperate with the court. Once the Will is filed, it becomes a public record and may be read by anyone who wants to go to the courthouse to view it.

As I said, it would be very unusual if the Will actually required a year of privacy. If it was written by an attorney, there may be a provision saying that a devisee has to outlive the testator by a certain period of time in order to inherit. For instance, saying "I leave my bank account to Betty if she outlives me by 30 days" (or a slightly longer time) is fairly common. That way, if Betty fails to survive by 30 days, the Will can recite a backup plan ("If Betty fails to outlive me, the bank account goes to Roger").

The Executor may decide to postpone probate until the delay has passed, but the delay does not forbid "reading the Will" during the delay. Perhaps your step-grandfather’s children are misconstruing something that his Will says, perhaps they are trying an end-run around your grandmother and are using this excuse to buy time, and perhaps your step-grandfather really did instruct that his Will remain private.

No matter what their motives, she is an interested party who has a right to bring the Will before a Judge for review. She should schedule a consultation with a probate attorney experienced in handling family conflicts.

Prior Column: Am I Liable for Dad's Medical Bills?
Next Column: Limits on Probate as Muniment of Title

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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