I recently had a client, Mary, whose husband passed away ten years ago in San Antonio, Texas. Afterwards, she suffered from enormous grief, spiraled into depression, and rarely left her home. The fog had just recently lifted and Mary realized she needed to turn her attention to settling her husband’s affairs. Her husband had a validly executed Texas will, and she wanted to know if I could help her probate that will. Unfortunately, I told her that in Texas, a person’s Will’s “expires” four years after they pass away. She was shocked! She really had no idea about that law, like so many people I speak to.
So how do we proceed now that it has “expired?” Mary has several options to settle her husband’s affairs. She can:
1. Proceed as if husband passed away with a will. This means that I, as the attorney, will need to open an Administration of the Estate and complete a Proceeding to Determine Heirship. We would have to use this option if Mary’s husband had any unsecured debts (for example, credit card debt). However, he did not. We would also need to use this if Mary’s husband left any bank accounts or other financial assets in his name. Financial accounts are often “frozen” by the bank when someone dies, and a bank will only give the estate’s representative access to the accounts if they have special papers from the court. Mary’s husband did not have those assets.
2. There is a narrow exception to probate the will after four years! I could probate the will as a Muniment of Title. Under Section 256.003(a) of the Texas Estates Code, a will can be probated as a Muniment of Title so long as the person in possession of the will was not in default. Mary was not in default!
3. I could complete an Affidavit of Heirship. This is a viable option, but we don’t know how a title company will respond if Mary wants to sell her homestead in the near future. In Texas, title companies must accept these Affidavits after they have been on file for at least 5 years. But what would happen if Mary wanted to sell her home next year? Because each title company varies in their requirements, Mary did not want to take her chances.
We proceeded with option number 2. Mary’s relieved to know that her husband’s affairs will finally be taken care of once and for all. If you have any questions about how this might apply to your situation, don’t hesitate to reach out to me, Amanda M. Skeen, Estate Planning and Probate Attorney, at 210-202-1141 or Amanda@skeenlawfirm.com
Leave a Reply