10 years is likely too long to have waited in a probate case
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: My mother died in Florida 10 years ago. I was an equal beneficiary under her will along with my sister, who served as executor, but I’ve never received anything other than $10,000. My sister sold a house but never gave me my share. Is there anything I can do?
A: You have almost certainly waited too long to do anything about this. There are statutes of limitation that require you to file suit to collect what you are owed within a certain amount of time following a person’s death. The limitation periods would be determined by Florida law.
In fact, once you are served with notice of the probate, Florida law says you must file suit to challenge the will within 90 days, or your lawsuit will be barred. In your case, you might be filing suit against the executor based upon a different legal theory, but the limitations period could be as short as two years.
If you want to pursue this matter, you would need to hire a Florida lawyer.
Q: I live in a small town outside Houston. My attorney has advised me not to use Transfer on Death Deeds for three parcels of real estate owned by my wife and me. This advice seems to be the prevailing local small town wisdom. I called the local title company, and they said they’ve never heard of that type of deed. With this type of local culture, are my wife and I creating more work and effort if we insist on TOD deeds?
A: Transfer on Death Deeds are now used in 26 states and in the District of Columbia, but they are still new to Texas. Lawyers and title companies have been slow to adopt the new form for a number of reasons.
First, change is difficult, even if the change is designed to make life simpler. It’s much easier for attorneys and title companies to continue doing things just like they have always been done. Plus, if change means legal fees are reduced, then some attorneys might be especially resistant to change.
Second, many attorneys refuse to write TOD deeds because of a concern that there will be a two-year wait after death before the property can be sold. Hopefully, the Legislature will soon correct this glitch in the law so that this is no longer an issue.
Third, the new Texas TOD deed form is poorly written. It contains several sentences that are nearly incomprehensible, and attorneys might be reluctant to use the form. None of the other 26 jurisdictions which allow these deeds have language as poorly written as Texas.
Fourth, you can’t leave a property to people in unequal shares when using a TOD deed.
So, yes, you should probably take the advice of your attorney and not insist on signing TOD deeds. Maybe in a few years, you will be able to simplify your estate plan.