Dear Mr. Premack: My father passed away last July, naming my cousin as the executor of his Will. When my stepmother returned to Texas, she “relieved” my cousin as executor and appointed a friend. Can she change my father’s executor without filing it through the courts? We have yet to see a copy of his Will and have not been advised of any of his wishes. They do not have a large estate with money etc., but there are family possessions that should come back to us. We are certain we should be listed in our father’s Will but have not received any information. I check the county probate index every so often and do not find this will has even been filed. Can she change my father’s executor and not follow his wishes? What are our legal rights? – S.I.
Considering that you have not seen your father’s Will and have not been advised of his wishes, your statement that “we are certain we should be listed in our father’s Will” is misguided. Legally, your father could state whatever instructions he preferred. Texas law does not force him to list you in his Will or to give you any of the “family” possessions.
When your father decided to marry a second time, he expanded the “family” to include his new wife. Under Texas law, assets they acquired during the marriage were their community property, while assets each of them owned before the marriage remained their separate property. Despite any classification, your father was free to dispose of any property which he owned – and if he left it all to his wife, that was his prerogative. Should he have done so? That is a moral question. Could he legally do so? Definitely “yes”.
As to the Executor, a Will only nominates a person for that position. No authority is actually conferred until a court admits the Will to probate and the Executor qualifies under the statutes to receive letters testamentary. You say you have checked the county probate index and his Will has not been filed for probate. Thus, there is no way that she could have “relieved” your cousin as Executor, since he has never become Executor.
Could your stepmother legally change your father’s Will? No. All parties must accept the instructions that he left. However, sometime those instructions are complex. He may have stated that if his wife was residing outside of Texas, your cousin should be Executor but that if she returned to Texas then she has first priority as Executor. Without seeing his Will, you cannot judge the propriety of her alleged actions. [It may also be that she only revised her own personal Will to drop your cousin as Executor, which she does have full authority to do.]
What are your legal rights? You must accept the terms of his Will so long as it is legally valid. If it is filed for probate, there will be a hearing before the Probate Judge. You could contest the validity of the Will if you have proper legal grounds to do so; but even a successful contest may not net you all of his estate (his wife has legal rights, too). If the Will is submitted for probate and if you are named as heirs, then you have the legal right to be notified by the Executor.
You should also be aware that your father may have made various non-testamentary arrangements for his assets. It is probable that any bank accounts were held as “joint tenants with right of survivorship” between him and his wife. They could have set up arrangements for the house to become her property outside of probate as well.
Your best chance to find out anything useful is to respectfully inquire with his wife about the arrangements that your father made. Additionally, keep your eyes on the probate clerk’s records, and if his Will is filed then you can obtain a copy from the clerk.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, October 1, 2010
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