Do you have to probate a will if passed statute of limitiations?

[nova215]

What is the name of your state? TX

My stepmom passed away 3 weeks ago. My dad passed away 6 years ago and in his Will he left everything to my stepmom. Last year my stepmom told me that my dad's Will was lost and that she never probated it and that she wanted to sell the house that was still under my dad's name and hers. She told me that I needed to sign a paperwork that will allow her to gain 100% ownership of the house so that she could sell it. I never got to sign that paperwork and the house was never sold. Now my stepmom passed away suddenly and there is no Will to be found. Since she died without one it looks like her surviving nephews and nieces will be receiving everything since I'm not blood related. But am I still entitled to half of the house through my dad since his Will was never probated? If I do find my dad's Will, do I have to probate it even though it's been over 4 years since his death?

 

[xylene]

You appear to time barred for your claim by the statute of limitations.

You may wish to consult a lawyer. If you wish to do anything you will NEED a lawyer, and soon.

Ask questions about what this will cost, and ask yourself about your intentions.

 

[Taxing Matters]

If you know that your father's will left everything to your step-mom, is there some reason (beyond the obvious one of greed) that you do not want to honor his wishes? He owed you nothing (at least legally), after all, and his assets were his to do with as he wanted. In any event, since the home was titled to both of them, it is very likely that they owned the home as joint tenants with a right of survivorship (JTWROS). If that is the case, then the moment your father died his interest in the home passed to her automatically outside probate. That would have accomplished exactly what his will would have done: giving her the house. So before you think about trying to claim a share of the house you ought to first determine how the house was held. If it was JTWROS then you are out of luck and it will not be worth your time or money to try to assert a claim to it.

 

[nova215]

If you know that your father's will left everything to your step-mom, is there some reason (beyond the obvious one of greed) that you do not want to honor his wishes? He owed you nothing (at least legally), after all, and his assets were his to do with as he wanted. In any event, since the home was titled to both of them, it is very likely that they owned the home as joint tenants with a right of survivorship (JTWROS). If that is the case, then the moment your father died his interest in the home passed to her automatically outside probate. That would have accomplished exactly what his will would have done: giving her the house. So before you think about trying to claim a share of the house you ought to first determine how the house was held. If it was JTWROS then you are out of luck and it will not be worth your time or money to try to assert a claim to it.

Thank you for your response Taxing Matters.

Yes. I do honor my Dad's wishes and I am so proud of him with the fact that he made sure he left well enough money for my stepmom who had suffered from lupus and other things since in the 90s and wasn't able to support herself. And I love my stepmom and thank her with all my heart for raising me and being a mom to me in my middle and high school years and in my 20s and 30s. My question was not about dishonoring my dad's wishes or being greedy. There is more story to this than you know. It is a long complicated story but my stepmom never intended to leave anything for some of her nephews and nieces who have done her wrong in the past. We actually found copies of her will leaving 90% to me and 10% to her close friend but without a signature. I just wish we can find her "signed" will so that we can honor her wishes and keep her assets away from some of these greedy nephews and nieces but it seems like we are out of luck. The only thing I am trying to do is maybe claim 50% of the house that I grew up in with my dad and my stepmom.

Facts:
1. The house deed in TX reads as "husband and wife" but there is no joint tenancy stated specifically in the deed so the ownership is tenants in common to my understanding.
2. My stepmom never probated my dad's will within the statute of limitations in TX which is 4 years. (my dad passed away 6 years ago)
3. We can't find my dad's will. My stepmom told me last year that her lawyer retired in 2013 and she didn't know that he had his clients pick up important documents from him and he actually has died since then and there's no way to find out where my dad's will is anymore.

My questions:
1. Can I try to claim 50% of the house through my dad since his will was not probated within the statute of limitations?
2. If we do find my dad's will, does it have to be probated even though the statute of limitations has passed?

Thank you.

 

[Ohiogal]

If you research you will find that the deed that reads as "husband and wife" means it was taken as community property. As in JTRS. Or tenants in the entirety which means stepmom inherits the ENTIRE house. You have no rights to it.

 

[not2cleverRed]

If you research you will find that the deed that reads as "husband and wife" means it was taken as community property. As in JTRS. Or tenants in the entirety which means stepmom inherits the ENTIRE house. You have no rights to it.

Unless a valid will can be found for stepmom. OP should focus on that, not whatever will Dad may or may not have had.

 

[nova215]

If you research you will find that the deed that reads as "husband and wife" means it was taken as community property. As in JTRS. Or tenants in the entirety which means stepmom inherits the ENTIRE house. You have no rights to it.

Ok. Thank you for your response Ohiogal.

 

[nova215]

Unless a valid will can be found for stepmom. OP should focus on that, not whatever will Dad may or may not have had.

Thank you for your response. I totally agree with you. I really hope that we can find my stepmom's will.

 

[adjusterjack]

If you research you will find that the deed that reads as "husband and wife" means it was taken as community property. As in JTRS. Or tenants in the entirety which means stepmom inherits the ENTIRE house. You have no rights to it.

Not necessarily.

Texas Estates Code Section 112.051:

"At any time, spouses may agree between themselves that all or part of their community property, then existing or to be acquired, becomes the property of the surviving spouse on the death of a spouse." Section 112.052 further requires that such an agreement "must be in writing and signed by both spouses."

 

[Taxing Matters]

Not necessarily.

Texas Estates Code Section 112.051:

"At any time, spouses may agree between themselves that all or part of their community property, then existing or to be acquired, becomes the property of the surviving spouse on the death of a spouse." Section 112.052 further requires that such an agreement "must be in writing and signed by both spouses."

Under community property, each spouse owns a share (usually half) of the community property. When one spouse dies, his/her share of the community property does not automatically go to the surviving spouse. The purpose of the section you quotes is to provide an alternate way to pass the decedent's share of community property to the surviving spouse other than by will. Under Texas law, if the couple has an agreement that meets the requirements of the section you cited the deceased spouses community property interest passes to the surivivng spouse outside of probate.

But does not deal at all with the issue of whether the property is itself titled as jointly held with a right of survivorship (JTWROS) or as tenants in common (TIC). If the deed expressly states the form of the title that appears to override whatever agreement the spouses had under the section you indicated. But if the deed is silent on the matter, it appears without the survivorship agreement it will be presumed as TIC. Some states in the case of a married couple apply the opposite presumption that it is JTWROS. But evidently Texas is not one of those.

Thus, as I indicated earlier, the OP needs to check out the deed to see what it says. If it is silent on the form of ownership, the OP may want to consult a probate attorney to double check what happens to it without a will and without the survivorship agreement.

Note that no community property state recognizes property held as tenants by the entirety (TBE) as that form of ownership under common law is contrary to community property.

 

[Litigator22]

Thank you for your response Taxing Matters.

Yes. I do honor my Dad's wishes and I am so proud of him with the fact that he made sure he left well enough money for my stepmom who had suffered from lupus and other things since in the 90s and wasn't able to support herself. And I love my stepmom and thank her with all my heart for raising me and being a mom to me in my middle and high school years and in my 20s and 30s. My question was not about dishonoring my dad's wishes or being greedy. There is more story to this than you know. It is a long complicated story but my stepmom never intended to leave anything for some of her nephews and nieces who have done her wrong in the past. We actually found copies of her will leaving 90% to me and 10% to her close friend but without a signature. I just wish we can find her "signed" will so that we can honor her wishes and keep her assets away from some of these greedy nephews and nieces but it seems like we are out of luck. The only thing I am trying to do is maybe claim 50% of the house that I grew up in with my dad and my stepmom.

Facts:
1. The house deed in TX reads as "husband and wife" but there is no joint tenancy stated specifically in the deed so the ownership is tenants in common to my understanding.
2. My stepmom never probated my dad's will within the statute of limitations in TX which is 4 years. (my dad passed away 6 years ago)
3. We can't find my dad's will. My stepmom told me last year that her lawyer retired in 2013 and she didn't know that he had his clients pick up important documents from him and he actually has died since then and there's no way to find out where my dad's will is anymore.

My questions:
1. Can I try to claim 50% of the house through my dad since his will was not probated within the statute of limitations?
2. If we do find my dad's will, does it have to be probated even though the statute of limitations has passed?

Thank you.

Excuse me, but you have been badly misinformed by Ohiogal! You are not out in the cold as she typically and dismissively often is prone to proclaim.

One way or another - community or separate property - you are indeed entitled to inherit a major interest in the house! However, it has nothing to do with any of your dad's testamentary wishes, written or otherwise. It is solely due to Texas' intestate succession laws.

With regard to community property (assuming they didn't create a survivorship agreement - most unlikely) these Texas laws provide that when the deceased spouse (dad) is survived by children (you) or their descendants that are not also the blood of the surviving spouse (stepmother), THEN:

". . . one-half of the community estate is retained by the surviving spouse and the other one-half passes to the deceased spouse's children or descendants. (you)" (See: Texas Estate Code Section 201.003 Community Estate of an Intestate.)

If not community property, but separate property, then you are entitled to distribution out of dad's estate of 2/3rds of the house. (Texas estate Code Sec. 201.002. Separate Estate of an Intestate.)

There is no reason I can think of as to why both estates couldn't be probated in the same proceeding and reducing the costs. Just be sure that you don't attempted to do it yourself.

Good luck

 

[nova215]

Excuse me, but you have been badly misinformed by Ohiogal! You are not out in the cold as she typically and dismissively often is prone to proclaim.

One way or another - community or separate property - you are indeed entitled to inherit a major interest in the house! However, it has nothing to do with any of your dad's testamentary wishes, written or otherwise. It is solely due to Texas' intestate succession laws.

With regard to community property (assuming they didn't create a survivorship agreement - most unlikely) these Texas laws provide that when the deceased spouse (dad) is survived by children (you) or their descendants that are not also the blood of the surviving spouse (stepmother), THEN:

". . . one-half of the community estate is retained by the surviving spouse and the other one-half passes to the deceased spouse's children or descendants. (you)" (See: Texas Estate Code Section 201.003 Community Estate of an Intestate.)

If not community property, but separate property, then you are entitled to distribution out of dad's estate of 2/3rds of the house. (Texas estate Code Sec. 201.002. Separate Estate of an Intestate.)

There is no reason I can think of as to why both estates couldn't be probated in the same proceeding and reducing the costs. Just be sure that you don't attempted to do it yourself.

Good luck

Thank you very much for your response Litigator22.