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
April 15, 2008

Probate Notices
-and-
Retention of Finished Probate Records

copyright 2008, Paul Premack

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Dear Mr. Premack: I recently found out that my father had a Will when he passed away two years ago. I was named in the Will, but have not been notified of such. Are there any time limits on my brother presenting a copy of the Will to me, and on him delivering to me anything father gave me in the Will? — K.C.

A Will dictates how a decedent’s estate should be administered and to whom the remaining assets should be delivered. A Will is enforced through a courtroom probate, but not all Wills need to be probated.

For instance, if your father only owned a bank account held in joint tenancy with right of survivorship to your brother, then the Will had no control over that account. It went to your brother pursuant to the right of survivorship.

On the other hand, if your father owned a house or any asset held solely in his own name, then the Will is used to determine the identity of the new owners. The person he nominated as Executor should have hired an attorney and filed the Will for probate.

When a Will is offered for probate, the law requires that notice be posted at the courthouse door. In Bexar County, there are large bulletin boards near the south entry to the courthouse with a wide variety of legal notices (probates and foreclosures are two of the main items posted).

Since September 2007 state law has required that persons identified in a Will as heirs must also receive, by mail, a copy of the Will and a copy of the Order admitting it to probate. But since your father died two years ago it is likely that his Will was probated before direct notice was legally required.

Even if the Executor did not mail you a copy of the Will, after it is filed for probate it is a public record at the courthouse. You have every right to go to the county clerk’s office to obtain a copy of the Will from the probate file.

The second part of your question deals with distribution of the estate’s assets. When the Will appoints an "Independent Executor" (which is typical of an attorney-prepared Will) that Executor is not supervised by the court. The Executor is not under any legal mandate to distribute the estate assets within any specific time limits, though most Executors try to finish the job as promptly as possible.

In estates that are small and simple (perhaps there are just a few bank accounts to collect and to distribute) the distribution can take place within a few months. But there are often complicating factors like federal estate taxes, business properties, or large debt obligations. Any of those can delay distribution of assets for a year or more.

Dear Mr. Premack: I was sole Executrix for my father's estate that was filed for probate 10 years ago. It was finalized and all assets were distributed about 14 months later. How long do I have to retain the probate papers? – JRH

Any papers which are the end result of probate – like deeds conveying real property to the heirs – should be given to the heirs and they should keep them as long as they still own those items.

Any procedural documents – like the Application for Probate or the Order Admitting Will to Probate – should be kept as long as you still have need for them (it is unlikely you would need them beyond seven years from the time you distributed the estate). They are a permanent public record at the courthouse, so if you shred and recycle your copies and later find you need to see them again, you can visit the originals at the county clerk’s office.

Prior Column: Venue for Probate
Next Column: Divorce can End a Living Trust

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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