28 Aug SUCCESS STORY OF THE MONTH – WIDOW PROBATES HUSBAND’S WILL SEVEN YEARS AFTER HIS DEATH TO GET FULL TITLE TO HOME
Many people incorrectly assume that the surviving spouse will always get full title to their homestead that was bought together after the first spouse dies. In this case, the husband, who had two children from a prior relationship and four children born of his marriage to his surviving spouse, left a Last Will and Testament naming his wife as his sole beneficiary. His wife assumed that since they bought the house together and that she was named in his Will as his sole beneficiary that she would have full ownership of the home.
If you do not have a Will, the state determines (through intestate succession laws) how your estate is to be distributed. In our fact situation stated above, the husband’s children (since he had children from a prior relationship) would own an interest in the home if he did not have a Will. Although the husband had a Will, Texas law requires the will be probated within four years – unless there is a justifiable reason (not just ignorance of the law). So, it is not enough to simply name beneficiaries in a Will – the court must approve the Will as being valid. In this case, we also had to prove an acceptable reason as to why the Will was not probated (did not get court approval) within four years of the husband’s death. Furthermore, when a Will is probated after four years, all of the potential beneficiaries (in this case the six children if they had all survived him) had to agree to waive their inheritance rights. However, two of the six children have already died leaving children of their own. As a result, we had four grandchildren also sign waivers of their inheritance rights. This was not easy as one of the grandchildren was at a secret location due to being in an unsafe part of Africa. Although it took an additional six months to get all possible heirs to find and agree to sign the waivers of their inheritance rights, the mission was eventually accomplished and the court signed the Order Admitting the Will to Probate so that the home was solely owned by the surviving spouse. In this case, the surviving spouse was fortunate that: (1) all potential heirs agreed to waive their inheritance rights; (2) all potential heirs could be located; and (3) the court agreed to her reason why the Will was not probated within four years. So, where there is a Will, there is a way – it just would have been much simpler (she wouldn’t have to notify any of the children or grandchildren or have them sign any waivers) if this Will had been probated within four years.
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