does probate court take expenses paid by heirs off the top and repay before dividing the ,money to the heirs?

My brother and sister paid for cremation, cleaning of my dads apartment and hauling of junk from his apartment. His will, written in 1973, left our mom everything about 28,000 but it is nil and void since they have been divorced for years. My sister insists that the court will take out the money they paid and repay them before dividing the remainder. I said it should be split 3 ways, then I would repay them my 3rd of the expenses. She said I don’t have a choice. Is this right?

Asked on May 7, 2016 under Estate Planning, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

The only person who really has the choice is your dad and the probate court... not your brother or sister.
Regardless of when the will was written.... it still controls.  A divorce does not "void" or revoke a will.  A will can only be revoked in writing.  If there is not a new will that says your mom gets nothing, then your mom still gets everything.  Many people think that a divorce nullifies a will... they are wrong.  The revocation of a will requires an overt act, even after divorce, to withdraw that will.  The final decree of divorce will not suffice.
Additionally, the will sets out who gets paid and and who has authority to pay for certain expenses out of the estate.  If the will did not say that your brother and sister would be reimbursed, then the will does not give them the authority to do so.  To get that authority, they would have to go to the probate court and ask for permission to do something contrary to the will.  At the most, the court may reimbursement them for the cremation.... but if the will does not provide for a such a repayment, the court may have no other choice but to distribute all of the funds to your mother since the will you describe left her everything.
This seems like it is getting real sticky, real fast with people who half-way know the law.  Arrange for a consult with a probate attorney and let them look over the will.  They can tell you what rules are provided for (or not) within your father's will. 

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