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YEAH, YOU GOTTA PROBATE THE WILL


I recently got the following inquiry:

“My father recently passed away in Houston and left me his Texas oil and gas rights in his Will (my brother was disinherited). I read your paper ‘Daddy Died’, and I found it very helpful. But I was hoping you could answer a question for me—is Muniment of Title a legal way to transfer oil and gas rights? I would like to avoid Probate if possible.”

So our fact scenario is that the maker of will has decided to favor one child over another, in his will, by giving his mineral rights to his daughter.

Of course, I am sorry for your loss.

ANSWER: Sure, just make photocopies of the will and send it to the oil companies – they will transfer ownership records just because they are companies full of very nice employees. All they want to do is help – and they will most assuredly “take your word for it.” NOT.


REAL ANSWER: You have to probate the will.


A PROBATED WILL VERSUS AN ALLEGED WILL


There are two types of wills: alleged wills and probated wills. An alleged will is an unproven will, namely


1. No proof that the signature of the maker of the will is authentic

2. No proof that the maker of the will was mentally capable of making a will (e.g. legally competent)

3. No proof that the maker of the will was not under duress (e.g. inappropriately influenced into preparing the will).


A will that has been probated is accompanied by an order by an independent third party (namely a probate judge) that the will is a. signed by the maker of the will (no forgery), b. that the maker of the will was legally competent to execute the will (think sane, not senile), c. the maker of the will was not under undue distress (think, did not have a gun to his head); and d. that the will is valid and operative to transfer assets in accordance with its terms.


No competent third party will ever rely upon an alleged will. It just may turn out not only to be alleged, but inoperable, fraudulent, etc.


If you are willing to take a risk relying on an alleged will, well I have some very good land in Florida in which you should invest. It is quite valuable, I promise. Not to mention, that estate in Venezuela, which, I assure you, is a real garden spot these days.


THE “CUT-IN” AND THE “CUT-OUT”


In our fact scenario, our will maker had two children: a daughter and a son. If he had no will, his assets would be split evenly between the two.


Now daughter should be pretty happy – she gets the “whole pie.” Of course, she is saddened her Daddy died, I believe that.


But son, may be unhappy – he does not even get a little bit of “crust.”


Maybe the son reflects as follows:


1. Daddy loved my sister more than me and I am okay with that

2. “Sis” needs it more than me

3. I was a pretty bad guy most of my life, and I deserve this

4. Easy come, easy go.


But son may also think:


My @!@#%# sister unduly influenced my Daddy by telling him a pack of lies about me and got him to cut me out of his will! I am getting a lawyer! And no more Christmas turkeys for my sister.


Sound a little bit like an episode out of Perry Mason, Matlock, or Murder She Wrote. A real made for TV movie!


YEAH, YOU GOTTA PROBATE THE WILL


Yeah, you have to go to a court and probate the will; a judge has to rule that it is a valid will. No other way. And, if you do not do so within four (4) years of the death of the will’s maker, the property may devolve according the laws of intestate succession – in this case, to the daughter and son, equally.


So, if daughter wants the “whole pie,” she is going to have a crack a few eggs.


IT’S ALL ABOUT MONEY


This is all about the transfer of assets. ASSETS = MONEY. People care about money; people fight over money. Gasoline stations exist so that we will have gasoline to power our cars; probate courts exist so that property owned by someone who is deceased can be transferred in an orderly fashion. Dead people cannot sign deeds; there has to be an orderly system in place. There is – it is called “probate.”


And where money goes, lawyers and other greedy people follow.


DISPELL AS FEW “URBAN MYTHS”


URBAN MYTH: I can avoid probate by “filing” the will as a “muniment of title.”


NOT SO. Where would you file this will? And would the county clerk determine that it was the maker’s signature, that the maker had been sane at the time of making the will, and that the maker had been free of an undue influence when the will was made? Ever met a county clerk? Do you really want them making decisions like that? That is way above their “pay grade.”


By the way, you do not “file a will as a muniment of title.” You can file an application with a court sitting in probate to “probate a will as a muniment of title” in some instances. Still, a judge, not the “wino” in front of the courthouse, will decide that the will is valid. A probate of a will as a muniment of title may be a little less expensive than the usual probate of a will, but not by a whole lot.


URBAN MYTH: It costs about 25 zillion dollars to probate a will.


NOT SO. Probating a will in Texas is not an extraordinarily difficult task, nor is it extraordinarily expensive, legal fee wise. Now, there are a few states where probate is time consuming and expensive. I understand California is one such state. But the probate process in Texas is efficient, straight forward, and of modest expense.


IN CONCLUSION


People preparing wills should always make sure that their will attorney has experience actually probating a will. You would be surprised how many incomplete wills we review.


Second, if you have significant real estate holdings, make sure you consult an attorney familiar with real estate law, not just will drafting. There are alternative vehicles to transfer real estate, such as “death deeds” (effective at death) and conveyances with a retained life estate (mineral rights retained by the grantor until his or her death). Could one of these vehicles been an effective substitute for a will in our fact scenario, of course I do not know. And anyway, it is now too late.


We not only draft wills and assist with estate planning, we also “probate wills.” As well, we have a substantial real estate law background, particularly in oil and gas law.


So – come and see us!


by Jack M. Wilhelm


Edward Wilhelm and Jack Wilhelm provide tremendously high value legal assistance to a large number of very desirable clients.


THE WILHELM LAW FIRM, 5524 Bee Caves Road, Suite B5, Austin, TX 78746; (512) 236 8400 (phone); (512) 236 8404 (fax); www.wilhelmlaw.net


DISCLAIMER: The information on this site is not intended to and does not offer legal advice, legal recommendations, or legal representation on any matter. You need to consult an attorney in person for legal advice regarding your individual situation.

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Wilhelm Law Firm, 5524 Bee Caves Rd., Ste B-5, Austin, TX 78746 (512) 236-8400