My aunt lost her 2nd husband in 1995. He has 6 kids from previous marriage and she has 3 kids from previous marriage. The will was set up to divide the property evenly between the nine (9) kids (who are all adults). The problem is, she lives in state of Texas (community property)... however, he hardly ever kept a job so she mainly bought the house. When he died, she didn't know what a Probate was... she thought it meant the same as "do you have a will?". It wasn't until about 5 years later when his kids started piling up on her... moving in... cliaming "this our daddie's property". My aunt decided she wanted to change the will (not to leave HIS heirs out, but to change the will to where ONE--HALF of the property would go to his heirs... and the OTHER--HALF to her heirs... she felt this would be fair because she and her deceased husband's children would hold equal share. She felt this was fair too since his children out-numbered her kids, they would yield a greater share of the property.

Question: Since she missed filing or probating her will within the 4 year deadline, is there anyway she can still have the property distributed the way SHE wants it? Both names are on the deed and will.

Did his will leave the house to her first if she was alive and then to the kids if she was not.

Or did his will leave the house to just the kids in the will.

His will will need to be probated and the property dealt with legally before she can start doing anything with giving it to others.

The heirs need to file in court to force the property to be done according to the will and laws of Texas

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Originally Posted by gentlespirit

... Question: Since she missed filing or probating her will within the 4 year deadline, is there anyway she can still have the property distributed the way SHE wants it? Both names are on the deed and will.

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What 4 year deadline does she believe applies?

If she is still alive, it is not to late to probate her will, it is to early. Her will cannot be probated until after her death.

I don't know what the late husband's will says, exactly, but I'm guessing that it would have left his property to her for life, and then their children. She may have options to avoid the per stirpes provision and instead end up with the per capita arrangement which you say she prefers. To see what her options are, she should consult with an attorney.

She says the original will has them both as owners. The original states that if she dies or if he dies, it remains the property of the surviving spouse. Upon that spouse's death, the property is to be divided 9 ways (his children 6, her children 3).

Auntee says she was asked immediately after his death and off and on "have you filed a probate" by different people (church members, friends, etc.) and she said "yes", thinking that a Will and Probate were one and the same. Now she realizes his kids think it's their dad's property. (Two of them have moved in with her (from California). Auntee says she later found out that she could have probated the original will... to what she wanted.

Only thing, in the state of Texas, you have to probate the will within 4 years AFTER the death of the spouse. She found out this option FIVE years after uncle's death. Since that time, she has had consultations with different attorney (phone consultations) and each one told her she missed her opportunity to probate (probate period expires after 4 years of death).

I told her according to the will, the property is HERS, not his heirs or her heirs. They cannot make claim to it until after she is deceased, THEN the 9-part division comes into play.

However, she says she applied for a loan last year and was told she could only get it if his heirs sign for it (?? ). Says she tried to get a Reverse Mortgage, and again was told it was heir property and she had to get the signature of the heirs.

I don't understand that, because I've seen the original will and she and uncle are both listed as Joint Owners. And the property belongs to survivor until they die, then it's to be divided equally among all heirs.

Auntee only wants to change the will to where it gives 1/2 of the property to his heirs, and HER HALF to her kids (not divided 9 ways , because she says HIS heirs outnumber hers and they would have more %, more control over the property. The property plus home is valued at $250,000.

I don't know... most of the attorneys she talked to say they would take the case, but it would cost her $350 per hour and they can't guarantee the results will be what she wants. So, she's on a fixed income and can't really afford to hire those attorney.



She is distressed about this...

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Originally Posted by gentlespirit

She says the original will has them both as owners.
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she ... was told it was heir property and she had to get the signature of the heirs.

I don't understand that, because I've seen the original will and she and uncle are both listed as Joint Owners. ...

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Let's start by establishing the answer to the following question:

Who had title to the property before he died? Don't look at the will, look at the deed by which the property was acquired. Was it owned by them as

• joint tenants;
• tenants by the entirety (same thing as joint tenants, really); or
• tenants in common?

Now, I realize that the community property laws in Texas might complicate things, but it seems we should start by asking that question. If they were joint tenants, it may be that the entire property became hers outside of his will, and she can leave it to whom she pleases.

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Originally Posted by gentlespirit

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Only thing, in the state of Texas, you have to probate the will withing 4 years AFTER the death of the spouse.
...

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That is really strange. Because where does that leave title to property? Perhaps it is as though he died without a will (intestate). I will look into that some more.

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Originally Posted by gentlespirit

...
However, she says she applied for a loan last year and was told she could only get it if his heirs sign for it (????). Says she tried to get a Reverse Mortgage, and again was told it was heir property and she had to get the signature of the heirs.
...

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If what you are saying is accurate, this makes sense. She would have only a life estate. The bank won't loan money only secured by a life estate because the life tenant (your aunt) could die tomorrow, and the bank would be left with nothing but an unsecured loan to a pennyless estate.

Yes, here is the statute you are talking about:

PROBATE CODECHAPTER V. PROBATE AND GRANT OF ADMINISTRATIONPART 1. ESTATES OF DECEDENTS
"Sec. 73. PERIOD FOR PROBATE. (a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.(b) If any person shall purchase real or personal property from the heirs of a decedent more than four years from the date of the death of the decedent, for value, in good faith, and without knowledge of the existence of a will, such purchaser shall be held to have good title to the interest which such heir or heirs would have had in the absence of a will, as against the claims of any devisees or legatees under any will which may thereafter be offered for probate.

Sec. 74. TIME TO FILE APPLICATION FOR LETTERS TESTAMENTARY OR ADMINISTRATION. All applications for the grant of letters testamentary or of administration upon an estate must be filed within four years after the death of the testator or intestate; provided, that this section shall not apply in any case where administration is necessary in order to receive or recover funds or other property due to the estate of the decedent."

Quite strange. It appears that the will is of no effect. Yep:

"Sec. 94. NO WILL EFFECTUAL UNTIL PROBATED. Except as hereinafter provided with respect to foreign wills, no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by the will, until such will has been admitted to probate."

Ok. Here is the solution to the problem, assuming that the 4-year limitation period means the will is of no effect:

"Sec. 45. COMMUNITY ESTATE. ...
.(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. "

In other words, Auneie's wishes apparently will come true. When her husband died, 1/2 went to her and the other 1/2 went to his children. She can now simply leave her half to her children, either by will or by intestacy if she wants.

But keep in mind: property owned in common by a half dozen people is never a good idea. She should consider an estate plan by which the property is sold and the proceeds divided up accordingly.

One other comment:

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Originally Posted by gentlespirit

... Auntee only wants to change the will to where it gives 1/2 of the property to his heirs, and HER HALF to her kids (not divided 9 ways , because she says HIS heirs outnumber hers and they would have more %, more control over the property. ...

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In-common property ownership is not like ownership of a corporation. It's not a matter of majority rule. Decisions must be made by all the owners. This is another reason why common ownership of property often does not work very well.

Thank you AK Lawyer... extremely helpful info. Next time I go over there I'll look at the will assess the details you mentioned. Thank you so much.

Thank you, too -- Fr Chuck