Dear Mr. Premack: It has been almost six years since my grandmother died, and the executor named in the Will has not filed it for probate. Is there anything I can do since I have financial gain in this matter? Is there a statute of limitations? – MB
Texas law says that letters testamentary (the legal credentials an Executor uses to make transfer of assets go smoothly) may not be issued if four years have passed since the date of death. Thus, it is too late for an independent probate of the Will. However, it may not be too late to try a less comprehensive type of probate called “muniment of title”.
Under Muniment of title the Will is reviewed by the court, and if approved then the persons named in the Will are treated as owning the items given to them in the Will. But there are negatives: 1) the flexibility of having an Executor is forbidden; 2) the heirs-at-law may be adversely affected by a Muniment after four years have passed, so the courts require that they be notified and have the opportunity to object to the probate; and 3) because of the long delay, the heirs-at-law may have sold property from the estate, and the Muniment cannot recover those assets for the devisees named in the Will. It is always better to probate an estate promptly instead of fighting the statute of limitations.
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, May 21, 2010