Can You Probate A Will After Four Years In Texas?

Robert Ray

Probate A Will After Four Years In Texas

The Texas Estates Code §256.003 (formerly Probate Code, §73,) requires that a will be probated within four years of the death of the testator “unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years…” So the question in all of these late filing cases revolves around the issue of “default” of the one who files the will for probate.

Facts To Consider

In a 2010 case, a Texas appeals court found that the proponent of the will was not in default even though she filed the will for probate more than ten years after the testator had died. The evidence listed by the court was that the proponent had limited financial resources: she testified that she could not afford to pay her former counsel and she had to apply for a loan to fix some doors that were falling apart. Moreover, she testified that her educational background was limited to grade school.  She believed it was unnecessary to probate the will; she did not know there was a time limit to probate a will. The children of the testator never asked for a share of his estate prior to this action. She also believed the the lawyer had taken care of the matter regarding the will. It was not until a third party, the children of the testator, filed the petition for determination of heirship that the proponent became aware of the need to probate the will, and she did so within thirty days of the children’s petition. After reciting these facts, the court said “As such, the record shows there was no absence of reasonable diligence … in probating the … will, and so she was not in default. 324 S.W.3d 257.

Although it is difficult to do because you must prove that you were not “in default,” it is possible to probate a will more than four years after the testator has died.

Case Updates:

In a 2016 case, the court of appeals approved a will filed eight years after the testator died. The proponent stated that they did not know they had to file the will for probate and, additionally, they didn’t have the money to probate it. The court said that ignorance of the law is no excuse, but the proponent’s belief that probate is unnecessary, coupled with a concern over the possible cost of probate, can constitute legally and factually sufficient evidence to support admitting a will to probate more than four years after the death of the testator. No. 12-15-00246-CV

In a 2017 case, the court of appeals visited this issue again. A man’s wife died. He did not offer her will for probate. More than four years later, he died. The husband’s executor found the deceased wife’s will and offered it for probate. The children of the deceased wife from a prior marriage objected saying it had been more than four years. The executor says she was not in default because she probated the will a month after she became aware of it. The court denied probate of the will. The court held that the question was not whether the executor was not in default but whether the husband was not in default before he died. Since no evidence was offered by the executor about the husband’s lack of fault, the will could not be probated. No. 14-16-00648-CV.

Update: in 2019, the Texas Supreme Court settled the issue of who is “in default.” The test now only applies to the applicant who filed the will for probate. If the applicant is not “in default,” the will can be admitted to probate. It doesn’t matter whether or not the applicant’s predecessors were “in default. ” You can read more about that case here. 17-0901.

Update: In 2022, the El Paso court upheld the trial court’s finding that the applicant was in default. No findings of fact and conclusions of law were requested so the appeals court had to assume that the evidence supported the trial court’s ruling. It distinguished a prior similar case where the applicant was held not to be in default by noting that the applicant never had an interest in the property, was familiar with land transactions because he had bought and sold some property before, and he spoke English. It is also worth noting that the court mentioned that the applicant, a male, was the “partner” of the decedent, a male. The court even cited the Obergefell ruling. Did that influence the ruling?


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Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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