Don’t Wait to Probate

Dear Mr. Premack: My husband’s estate was valued less than $35,000 including his interest in the family homestead. There were no debts other than that on the homestead mortgage. His Will left all assets to me and he had no children. I filed an Affidavit of Heirship along with his Will when he died in 1991. Now, I’ve discovered that before he died he had inherited a mineral interest in west Texas. An oil production company is claiming I own only ½ of his interest due to the separate property laws of Texas giving his brother and sister ½ of his interest. I understood filing the Affidavit of Heirship with the Will attached satisfied probate requirements to establish me as 100% owner. What does the Texas law say? – CLM

Dear Mr. Premack: My aunt had a Will that named my three sisters and me as beneficiaries. When she died 5½ years ago all she owned was an annuity and her furniture, so there seemed to be no reason to probate her Will. But last month I found out she owned a mineral interest in Denton County and that the Lessee was about to begin drilling. Her brother says he is entitled to a portion of this, even though they had no contact and he was not part of her life. This is worth a lot of money. Can we get the Will recognized at this point? – RWK

You both have the same situation: a late-discovered asset belonging to a deceased relative, which you think should belong to you because the relative’s Will says so. Years ago, both of you decided to skip appearing before a Judge for probate of the Wills, and now more distant family members claim a partial right in the late-discovered assets.

CLM thought that filing the Will as an attachment to an Affidavit of Heirship “satisfied probate requirements” to establish her as 100% owner. Although it is true that the Texas Probate Code authorizes Affidavit of Heirship as a method for identifying the heirs to a deceased person’s assets, there is no provision that allows the Will to be given effect by attaching to the Affidavit. Filing such an Affidavit is not the same as filing the Will for probate in court.

Instead, when you file an Affidavit of Heirship, you are invoking the state’s laws on descent and distribution. You are specifically choosing to ignore what the Will says, and instead letting the law dictate to whom the assets pass. Sometimes the laws of descent and distribution say the same thing that the Will says (so you get the same outcome). Many other times, the Will says something entirely different that what state law says (and unless you do a courtroom probate, the Will becomes meaningless).

In CLM’s situation, her husband inherited his mineral rights, so they were his separate property. The Texas law of descent and distribution says that since he had no children his separate real property passed one-half to her and one half to his parents (if any) or to his siblings. The Will was not probated, and since he died in 1991 it is far too late to offer it for probate now. His wife is stuck with the decision that she made in 1991, gets no benefit from his Will, and must live with the fact that failure to appear before a Judge for probate has cost her half of this valuable asset.

RWK is in much the same situation. The Will was never offered for probate, so the same laws of descent and distribution should apply. However, because it has only been 5½ years since her aunt died (not 19 years) there is one slim hope. Ordinarily a Will cannot be offered for courtroom probate after four years have passed. But if RWK can show the Judge that the delay was not “default”  (that is, was only because there seemed to be no need probate until these new facts arose) then the court might admit the Will to probate as a Muniment of Title.

To protect the heirs-at-law (the decedent’s sibling) notice must be sent before the probate. The sibling has the right to object to the probate or to acquiesce. The Judge must balance these opposing rights and decide to whom the mineral rights will pass: the sibling under the laws of descent and distribution, or the nieces under the terms of the Will. It is worth the effort to offer the Will for probate as a Muniment of Title since the asset involved is worth a lot of money, but there is no guarantee it will be accepted at this late date.

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, January 22, 2010

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