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Outdated will may require special estate administration actions

What happens when a relative dies and leaves an old will that has not been updated for decades? In one real-life case, an elderly aunt died leaving a will with no executor and giving the estate equally to a deceased brother, a sister who is incompetent and in a nursing home and her late husband’s children. The rules of estate administration that apply in Texas are relevant to answering the question. 

The individual who assumed responsibility and filed for letters of administration was a son of the deceased brother. He now wants to know if his father’s share will go to him and his siblings or if it will revert to the estate due to his father’s predeceasing the aunt. The answer to that question lies in how the will was worded. If the magic words “per stirpes” were included in the gift, then it will indeed pass to the brother’s children. However, if the term “per capita” is used, then the brother’s children will get nothing and that share will go to the remaining heirs.

Another deep complication exists with respect to the sister in the nursing home. She will likely lose her share to the state based on the fact that Medicaid has been paying her way in the nursing home. The matter requires the assistance of an experienced elder law attorney, who may determine whether any remedies exist to save that share. At the same time, that attorney will evaluate the legal situation and advise whether the deceased brother’s share will go to his children.

In the meantime, the nephew who has agreed to step forward and act as the administrator for the estate administration will file estate papers with the local county court and will receive a certificate called “Letters of Administration,” which is issued where there is no will or no executor named in the will. The administrator will follow the legally required steps under Texas law to administer and close the estate. These include paying all debts owed including taxes and administrative expenses, collecting the assets, and distributing the net shares to the heirs who are entitled to collect.

Source: napavalleyregister.com, “Aunt died with outdated will, now what?“, Rosie McNichol and Len Tillem, July 3, 2015


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