A Funny Thing Happened on the Way to Probate

Division Order Analysts sometimes receive interesting division of interest maintenance documents. That said, I had one come across my desk a few years ago that I will always remember.

I’ve decided to share it.

A Will and death certificate came in under a cover letter from a young man claiming to be the executor of the estate of his deceased mother. The letter included a phone number in case I had questions. I saw on the death certificate that his mother died in Texas. The Order Admitting the Will to Probate and Letters Testamentary were missing. He claimed to be the executor of the estate. I knew from training and experience that the Order creates the legal entity “Estate” and the Letters would grant him the authority of Executor of that Estate.

Putting that aside for the moment, I quickly glanced at the Will to see what property was to be distributed. My mouth dropped when I saw no less than four pages of legal descriptions, grouped into categories which then were bequeathed in the Will. From that, I knew that the estate was worth far more than the $75,000 limit Texas places on an Affidavit of Heirship, so I would need the other documents before I could make any changes to the divisions of interest.

He answered my call and I politely asked him to either mail or email to me a copy of the missing documents. He replied that the Will was not being probated. The red flag that went up was huge. While still on the phone with him, I quickly glanced at the death certificate and noticed that she had died almost three and a half years before the company received the documents. I then told him he needed to talk to an experienced estate attorney because Texas only allows four years to elapse between death and filing the Will for probate. After that, an Administration of the Estate would be necessary which is nothing more than the probate court issuing an order that is equivalent

to an affidavit of heirship. It also serves as a conveyance to the heirs per Texas laws of descent and distribution.

He told me that he is “in touch” with such an attorney, but was told just to send a copy of the Will and death certificate to the companies paying royalties to his mother. They would start paying him and his brother, and the rest of the estate would be handled later, he told me. I quickly ended the conversation on a cheerful note, but immediately dived into reading the Will from beginning to end. Two things in it caught my eye immediately.

First, his brother was named in the Will to be executor of the Estate, not this man. Secondly, it gave his brother authority to temporarily manage the property being devised to the brother with whom I had just spoken, “from time to time, as necessary.” Whoa. What was going on here? The second thing I saw was that the clause distributing the real property simply said “to my sons, to be divided equally.” It was strange that she didn’t give the number of sons or their names. Two sons had been identified by name earlier in the Will, stating that she would be survived by her sons Tom and Harry. That seemed odd.

I decided I needed to bypass the brother who sent the documents and contact the other brother. I called the first brother back and trying hard to sound like an airhead, explained that I forgot to tell him I needed the full contact information for him and his brother, where we could send a W-9 to get tax IDs. Not blinking, he gave me all of his information, including his tax ID, over the phone, and gave me his brother’s address and phone number. I thanked him again and hung up. I wasn’t able to reach the other brother, Harry, until the next day.

Harry was quite cordial and businesslike on the phone, a stark contrast to his brother Tom. I told him that we had received the documents from Tom, but we received only the Will and death certificate, that the court documents were missing. He immediately asked me if the Codicil had been included with the Will. At that moment, I knew immediately this piece of maintenance wouldn’t be ordinary. I told the brother that because we had received the documents, at the very least we must suspend all revenues being paid to his deceased mother, which had continued going out all this time. He said that was fine, but that I needed a copy of the Codicil and he would send it to me.

About a week later the Codicil arrived as an attachment in an email that explained that there were some “family issues” that were being “worked out” before filing the Will for probate. He didn’t explain further. Then I read the Codicil. The problem being “worked out” jumped out at me right away.

The Codicil said that the mother was adding a “special bequest” to her son “Dickie”, that special bequest being a deposit of whatever amount necessary into the investment account already established for Dickie, to bring the balance to $1,000,000. It went on to identify the Guardian of Dickie and instructions that the Guardian was to use income from the investment to assist in Dickie’s care “until he reaches the age of 18.” What? The death certificate showed she was 86 years old when she died almost four years previously, so how on earth could she be survived by a minor child? The Codicil was executed just two years before she died.

I was ready to throw the deceased owner’s account into suspense for death and create a PDF containing a memo explaining everything I knew, with all of the documents and correspondence. Then Tom called me. He had found out that Harry sent the Codicil, and he wanted to explain. He was certain that all of this would be worked out “very soon,” so could I hold off suspending the account? No, of course I could not. To try and make his case for holding off suspending, he began his explanation.

Dickie was actually Tom’s son by his ex-girlfriend. Dickie was only eight when his grandmother died, but when she died Dickie wasn’t her grandson, he was her adopted son. Tom explained that he had “addiction issues” and had been in and out of rehab several times. He confessed that was how Tom met Dickie’s mother. In order to make certain Dickie would be a legal heir, his grandmother (the deceased owner) adopted him right before executing the Codicil. When the call ended, my head was spinning.

This explained why Harry was given authority in the Will to handle Tom’s affairs “from time to time” and why Tom didn’t try to adopt Dickie legally, for heirship purposes. It also explained the most likely reason why the Will and Codicil were not being probated at that time.

Because the Will expressly devised “to my sons, in equal shares” all real property in the largest group of legal descriptions, Tom and Harry would not each receive half; they would receive only one third. This could amount to millions of dollars’ difference, based on everything I had assessed from the Will and company records. And, the company I was working for was only one of many companies paying royalties, no doubt.

In the end, it turned out that Harry was working with an estate attorney to negotiate the “signing bonus” for the Guardian (Dickie’s biological mother) to sign documents limiting her access to the money before Dickie reached eighteen, and for her, as Guardian, to quitclaim Dickie’s one-third of the estate. Tom was expected to sign the documents, too, purportedly containing his agreement to bequeath all of his one-half of his mother’s estate to Dickie upon Tom’s passing. It also gave rise to suspicion that Tom received at least my employer’s royalty checks all this time and had access to those revenues. None of the checks had been returned to date.

The Guardian may have realized the total value of Dickie’s inheritance due to the Codicil. The Guardian possibly wasn’t budging from a high seven-figure demand for a signing bonus. Talk about a solid gold carrot.

The company’s in-house counsel had the opinion that the equal distribution of real property in thirds could be challenged on several different grounds, according to him. He was of the opinion that the estate attorney could be waiting until the last minute to file the Will for probate, in case the Guardian didn’t sign the documents. In that case, he said, after admitting it to probate the estate attorney could immediately file a challenge to the Codicil on any one or all of the grounds that the in-house attorney thought could be successful. It could be dragged out for years, though.

The account was suspended and the supporting documents were bundled into one pdf with a cover memo explaining everything in case I was no longer handling this area of properties when the matter concluded. Unfortunately, I left employment with that company before this issue was resolved. It was like listening to an entire, long-drawn-out joke and then missing the punch line.

Whoever said division order work is boring? You never know what new “Peyton Place” is arriving in your inbox tomorrow.

Originally published in the National Association of Division Order Analysts 2025 Q4 Magazine.

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