Legal Question in Wills and Trusts in Texas
Petition to Claim Excess Funds
My grandmother died in 1998 and her property was sold for back taxes. Her husband died previously in 1995. I have the original notorized wills of my grandmother and her husband with the usual if one dies the other inherits all. A note is on both of the wills stating my father was owed the balance of a note for $5,028.71 to be paid in full prior to distribution of any of their estates. This is where it gets complicated to some ... my father was the only child of my grandmother and he preceeded her in death by one year in 1997. According to the will it states that all children and their survivors are to split the estate ... therefore ... her husband had 2 children and with my fathers death my brother and i would be the heirs on her side. How does the note of $5,028.71 come into all of this? It is my understanding that it is to be paid to my fathers estate before anything else is done. If so ... I need to find out how to file a petition to claim excess funds and should i include the copies of the notorized wills of my grandparents? Thanks for any help you can give me ....
1 Answer from Attorneys
Re: Petition to Claim Excess Funds
Hello -
As a beginning point, I feel obliged to tell you that for the provisions of either grandparent's will to be legally followed, the will must be admitted into probate. Once admitted into probate, the Court aids the Executor in paying all debts and distributing all funds due. The law would require payment of the note before distribution of the estate anyhow, so that issue is resolved. As for determination of distribution, the Court would aid in that process. There is a set statutory scheme whereby the estate would pass if one person in the "chain" predeceases the will-maker. In this case your father has predeceased the will-maker, and by most standards you and your sibling would receive equal portions of the amount your father would have received. To determine how much your father would have received, you would need someone to look at the will document to see if certain phrases "per stirpes", "per captia", "strict per stirpes" or "strict per capita" appear. Each would have a different outcome. I would encourage you to retain a probate attorney to resolve this matter. The statute of limitations for admitting a will to probate is generally four years, and you are probably into that time frame by 3 on the last decedent.
I sincerely hope the above was helpful to you. If not or if you have further questions, please let me know. Our firm would be happy to help you through this process however we can. Please feel free to call us at 254.756.5004 or e-mail: [email protected] Thanks and all the best.
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