Can you probate a will after four years?

Robert Ray

Can you probate a will after four years?

A will has to be filed for probate within four years of the testator’s death. After four years, a will can be filed as a muniment of title but only if the person filing the will is not “in default.” When a late-filed will is opposed, the issue is usually concerned with whether or not the person filing the will late was in default.

In a case on this issue decided in 2011, the testator had children by a prior marriage. His wife had children from a previous marriage. He executed a will leaving everything to his wife if she survived him. The testator died in 2002. His wife probated no will. Six years later, she died. While going through her papers, her children found the will. Although it was more than four years after the testator died, the wife’s children filed the will for probate. A daughter from the testator’s first marriage contested the probate, contending that the wife’s children were in default for not filing it within four years. (If the testator died intestate, his children from the prior marriage would inherit his property, not the wife.)

The Court sided with the wife’s children. It ruled that her children were not in default just because the wife was in default for not filing the will within four years. They testified that they were not aware of the will until after their mother had died. The Court said that if they didn’t know about the will and were not negligent in finding it, they were not in default. 343 S.W.3d 899.

In a 2013 case, the wife didn’t file the will within four years. An attorney told her that she didn’t need to file it; she could just file an affidavit of heirship. The wife did not know that such an affidavit would not pass the husband’s separate property to the wife. A dispute arose between the wife and a son. The son claimed that the separate property belonged to the children because the wife did not probate the will within four years. He claimed that it was now too late to probate the will. The issue turned on whether the wife was “in default” for not filing the will within four years. The court ruled in favor of the wife. There are several cases where the courts have found that evidence that a proponent relied on counsel’s advice was sufficient to support a finding that the proponent was not in default or raise a material fact question of whether the proponent was not in default.  No. 11-11-00131-CV.

While the Texas Estates Code requires that a will has to be filed within four years of the testator’s death, a will can still be filed after that time if the person filing the will was not “in default” in not filing within four years. Texas courts are pretty liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon showing an excuse by the proponent for failure to offer the will earlier.

Update: in 2019, the Texas Supreme Court settled the issue of who is “in default.” The test now applies only 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: On April 29, 2022, the Austin court denied probate to a will filed more than four years after the testator’s death. 03-20-00449-CV. But, on May 6, 2022, the same court upheld a will being admitted more than four years after death. 03-21-00081-CV. In the last case where the will was admitted, the widow testified that she went to a lawyer who told her she did not need to probate the will and, as soon as she learned about the need to probate it, immediately took steps to get it probated. The difference between the two cases shows what evidence is necessary to establish a lack of default when a will is probated more than four years after death.

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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