What to do if my step-mother was named executor of my father’s Will but she has not filed the Will for probate and claiming that there is nothing to probate?

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What to do if my step-mother was named executor of my father’s Will but she has not filed the Will for probate and claiming that there is nothing to probate?

He died about 9 months ago. Since she will not speak to my sisters or me, we are getting this information second hand. We have not seen a copy of the Will but my sisters and I remember our father asking for our SSN’s and those of our children. What can we do to get the Will filed and probated?

Asked on November 11, 2013 under Estate Planning, Oklahoma

Answers:

Brook Miscoski / Hurr Law Office PC

Answered 7 years ago | Contributor

In Texas, individuals who have an interest in the will (descendants would qualify) could file a motion with the court to require that the custodian of the will submit it for probate. The court would then require the custodian to probate the will, justify to the court's satisfaction why that cannot or should not be done, or spend some time in jail.

This should be done sooner rather than later--even though there is a 4 year probate period in Texas, it's still wise to act before an unlawful person has time to deplete an estate.

In Texas, the father's will might be limited by certain other rules. For instance, let's say that the only property your father owned was jointly held with your step-mother. She could have a lifetime right to use certain property, such as the house. And in a community property state (or in any state with marital property, I am also licensed in Illinois) a certain amount of property might just belong to her.

Since your step mother probably isn't a legal expert, it's difficult to know whether she means that there is no will or instead that there isn't any property that could be willed. In any case, the way to start would be to require that she cough up the will, as discussed initially.


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