Five years ago in Texas, John died, willing his house to a nephew, A.W.
Today, A.W. wants to get ready to sell the house, and pay off some debt.
Here’s the rub. The will never went through probate, and a different relative of John’s has been living in the home all this time.
Who gets the house?
A.W. was named as the next owner in the will, and never refused the deed. So, legally, A.W. owns it, right? Wrong. Procrastination is the thief of assets, as A.W. learned the hard way. A will does not enact itself. It has to be probated according to a timeline.
You Are Named in the Deceased Homeowner’s Will. The Deed Is Now Yours. Right?
As A.W. can now tell you, legal steps and deadlines apply to the executor who transfers Texas property after its owner dies. Beneficiaries can’t just sit on the will and claim their property in their own time.
In any state, if you are named as the executor of a will (as A.W. was), with directions to transfer an interest in the house to yourself or another person, you are responsible for getting the will into probate in a timely manner. Probate is vital. Granted, many states provide informal probate for simple estates. But eligibility must be determined by the court.
In probate, the court determines:
- If the will is legally valid.
- If the will’s named executor may represent the estate of the deceased.
- If the will is uncontested.
- That notice has properly gone out to creditors, advising them of their own timeline to claim repayments from the estate.
- That the estate has paid the decedent’s estate expenses, debts, and any applicable federal and state taxes.
- That the assets are properly accounted for and distributed.
So, only through a properly supervised probate process can the will effect a transfer of the deed. By the conclusion of probate, a deed will be publicly recorded in the county, giving notice to the world of a home’s new ownership.
What’s the Deadline for Getting a Will Into Probate?
Filing deadlines vary widely from state to state.
A will in Colorado must go into probate within 10 days of its maker’s death. Ohio allows beneficiaries who know about a will to take up to a year to submit it to probate, but if they deliberately stall or hide a will, they lose the right to inherit through it. The assets they forfeit pass to the innocent heirs in accordance with state law.
Not surprisingly, many states impose penalties for failing to present a will to the court. For example, those in the state of Washington who “willfully” fail to file a will are liable to the people they harm.
Under state law, A.W., as the person holding John’s original will, ought to have submitted it to the probate court in John’s home county.
Then, probate—not John’s will, not a personal relationship—could have authorized the will to become effective, and transferred the house to A.W. with a clear title.
What Is Muniment of Title?
The transfer of John’s house is controlled by the laws of Texas. There, a will has to go into probate within four years from the day its maker died. Once that deadline passed without proper action, the probate court could no longer appoint A.W. as executor. At that point, the will could no longer be accepted as valid—except through a legal process called muniment of title.
For that exception to apply, A.W. would have had to meet three criteria under state law:
- A.W. had an adequate explanation for missing the deadline.
- The will’s action was limited to transferring title to A.W.—the person it named.
- The heirs that would inherit the property under Texas default inheritance law allowed the recognition of the will. (All states have a list of family situations to establish inheritance priority if no valid will can be found.)
By failing to act, A.W. allowed the home’s title to pass to another relative: John’s sibling, who lived in the home and who had priority over A.W. under the default inheritance priority list set forth by Texas law. Without timely probate, title passed to John’s sibling, the heir-at-law. John’s sibling clearly had no desire to give the house up to A.W. through muniment of title. The sibling’s claim to the house is official once an affidavit of heirship is recorded in the county.
As for A.W., it’s a case of you-snooze-you-lose.
Regardless of Prompt Action by the Will Beneficiary, Can a Home’s Occupant Try to Claim It?
What if we could turn back the clock, and urge A.W. to act quickly to preserve the right to receive John’s home?
John’s sibling might have objected to the will, hoping to avoid being kicked out of the house. Assuming John’s will was correctly made under the state’s requirements, A.W. should have had no trouble executing the will and receiving the home as John intended. A probate court’s mission is to carry out the intentions of the deceased, following state law.
Simply occupying the home does not make the sibling of the deceased a legal occupant, or convey any rights to the title. A.W. would have been entitled to receive John’s house.
A.W. would have been prudent to involve a lawyer to assist with the difficulties inherent in such a situation, which could involve the occupant’s eviction.
What if the occupant had been paying rent to John? A.W. would have had to respect the terms of a valid lease for its full length of time. Alternatively, A.W. could have offered to buy out the lease.
Being Named an Executor Is a Badge of Trust.
It also takes mindfulness, prompt attention, a time commitment, and the willingness to handle potential conflicts. If you find yourself in this situation and have questions on how to proceed, consult a probate lawyer. As the estate covers attorney’s fees, your investment will be a wise one.