Contesting a Will After it Has Been Admitted to Probate

Contesting a Will After it Has Been Admitted to Probate

Time Limits

The time limits or what lawyers call the statute of limitations for contesting a will is determined by reference to the date the will was admitted to probate. Click on “admitted” to learn what that means.

Time to File

A will can be filed for probate anytime within fours years of the death of the testator.  The date of death is not the date that the statute of limitations starts to run. It is doesn’t start to run when the will is first filed for probate. The statute of limitations doesn’t start until the will is admitted to probate. A person then has two years after the will has been admitted to probate to file a will contest.

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Texas Statute of Limitations or Probate Limits to Challenge a Will.

What Are Time Limits to Contest a Texas Will

In Texas, the probate limits or the time limits for challenging a will, what the law refers to as the statute of limitations, is complicated.  It is complicated because the Texas probate time limits for contesting a will center around the date that the will is admitted to probate, not the date of death of the testator.  See the article on the probate process to become familiar with how a will is probated and to learn what “admitted to probate” means.

Contest A Texas Will Before Or After The Will Is Admitted To Probate

You can oppose a Texas will filed for probate before or after it is admitted to probate. There are benefits to challenging the will before it is admitted to probate. However, you can contest the will even after it is admitted to probate if you file the will contest before the statute of limitations or probate limits run out. You can challenge a Texas will on several grounds. I have written on the reasons for contesting a will here and here.

Contesting a Will in Texas Time Limits
You know you are an heir 2 years from date will admitted to probate
Minor 2 years from date of majority
Fraud No limit but you must act reasonably quickly after discovery of fraud

Two Year Rule

The basic rule in Texas is that a person has two years from the date a will is admitted to probate to contest it.  That seems simple enough but the probate limits are not so simple.  For instance, the proponent of the Texas will has four years after the death of the testator to file the will for probate.  If the proponent files the Texas will just before the four years is up, the contestant will have two years after that to contest the will (six years after the death of the testator!)  To complicate matters even more, a person who is not at fault can file a will more than four years after the death of the testator.  “Not at fault” usually means that the person who files the Texas will for probate after four years did not know about the will during the four years after the testator’s death but found it later.  If a person knows about the will and just doesn’t file it, he is usually at fault and can’t file it after four years elapses.  As with all rules, there are exceptions.  If the person knew about the will but was told by his lawyer that he didn’t need to file it, he may not be at fault and may be able to file the will after four years.  In any event, the contestant can challenge the will within two years of the date that it was admitted to probate, when ever that date is. Probate limits in Texas are complicated!

Minors

Minors have two years from the time they reach their majority to file a will contest in Texas. Probate limits in Texas are complicated! There is a 2018 case where the children were minors when their father died. The Administrator of the estate, took all of the money and didn’t tell anyone. When each child turned 18, the Administrator gave them a check for around $25,000. The estate was worth over $250,000. The children had all been raised in foster care and were unaware of their rights. More than four years later, the children finally hired an attorney and sued the Administrator. The Administrator said he had destroyed all the records and didn’t remember what was in the estate. The Adminsitrator asked the court to dismiss the claim because of the statute of limitations. The court did dismiss the claims. The dismissal was upheld by the court of appeals. So remember, time matters! 571/324.

Earlier Will

If a person finds a will dated earlier than the will that is filed for probate and thinks that the earlier will is the true last will of the testator, he has two years from the date that the later will was admitted to probate to file the earlier will for probate.  This operates as a contest of the later will.  If a person finds a later will than the one admitted to probate, he has four years after the death of the testator to file the will for probate.  Filing a later will executed after the  earlier will that has been admitted to probate, may not be considered a “contest” and may not be governed by the Texas two year statute of limitation for will contest.  The later will can be filed within four years of the testator’s death or later if the person filing the will is not at fault. Probate limits in Texas are complicated! (Compare 322 S.W.3d 361 with 577 S.W.2d 748.)

As stated above, the statute of limitations is complicated. If you are concerned about the time, you should contact an attorney as soon as possible.

Burden of Proof

If a will is opposed before it is admitted to probate in Texas, the proponent of the will must prove that it is a good will, executed with the formalities required by law, at a time when the testator was competent and that it has never been revoked.  After the will has been admitted to probate in Texas, the contestant has the burden to show that the will is not good, that it was not executed with the formalities required by law, that the testator was not competent or that the will has been revoked.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Learn About Filing Two Different Wills in Probate Court

The law requires that a proceeding contesting a will be filed within two years of the time that the will was admitted to probate. But what if someone has a newer, different will in their possession than the one admitted to probate? 

In that situation, it may be possible to file the newer, different will more than two years after the other will has been admitted to probate because the law says that you can file a will for probate within fours years of the testator’s death. While filing a newer, different will than the will admitted to probate is surely a ‘contest,’ some courts have allowed the process to go forward, treating the proceeding as a filing of a will (four years) as opposed to a will contest (two years.)

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Can you probate a will after four years?

A will has to be filed for probate within four years of the death of the testator. 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 by a prior marriage. He executed a will leaving everything to his wife if she survived him. The testator died in 2002. No will was probated by his wife. 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 just because the wife was in default for not filing the will within four years, her children were not in default. 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 a number of 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 to raise a material fact question of whether the proponent was not in default.  No. 11-11-00131-CV.

While the Texas Probate Code requires that a will has to be filed within four years of the death of the testator, a will can still be filed after that time if the person filing the will was not “in default” in not filing it within four years. Texas courts are quite liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon the showing of 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 only 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.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Learn About Contesting a Will Before the Will is Admitted to Probate

Contesting a will in Texas before or after it has been admitted to probate?

You can contest a will either before or after it has been admitted to probate; however, there are certain benefits to contesting the will before it is admitted. If a will is contested before it is admitted to probate, the

person who filed the will for probate has the burden of proof to show:

  1. That the testator had testamentary capacity when he made the will;
  2. That the will was executed with the required formalities; and
  3. That the will was never revoked.

A will can be contested after it has been admitted to probate but the burden of proof is then on the person contesting the will. The burden of proof on some issues like undue influenceforgery, etc. are always on the person contesting the will whether the contest is filed before or after the will is admitted to probate.

Contesting a will after it has been admitted to probate is the usual time frame in which people contest wills. Whether it is because the person only found out about the will after it was admitted to probate or whether the person hoped that the invalid will would somehow not take effect or whether it is just normal human dragging of the feet is hard to say.

Contesting a will can be done even if the will has already been admitted to probate. A person can still contest a will but needs to contact a lawyer as soon as he thinks that he might need to contest a will. As can be seen, there are some benefits to contesting a will as soon as you realize that the will is invalid and should not be admitted to probate. Even if the will has already been admitted to probate, it is beneficial to start the process as soon as possible.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Texas Statute of Limitations for Contesting a Will

Texas Statute of Limitations for Contesting a Will

Basic Rule

In general, a will contest must be filed within two years from the date the will is admitted to probate. Click on the highlighted terms to read about what “admitted to probate” means.

Contesting a Will in Texas Time Limits
Basic Rule 2 years from date will admitted to probate
Minor 2 years from date of majority
Fraud No limit but you must act reasonably quickly after discovery of fraud

Suits to Declare Heirship

The legislature changed the law on timelimits for suits to declare heirship in 2014. Starting in 2014, there is no limitation on a suit to declare heirship. EC 202.0025. In all probability, that change will only apply to people who die after the changes take affect. Before the change, there was a general 4 year limitation period on suits to declare heirship. A suit to declare heirship is different from a will contest. Just because the time limits to declare heirship have changed, it does not change the statute of limitations period for contesting a will. It is just another item that should be discussed with your attorney.

Example: An example may be that a person leaves a will giving his property to his “heirs” or to his “children” or some other general term without specifically mentioning individuals. Someone who is an heir or a child of the deceased does not know about the will or the death of the person. Years later, they do learn about the provisions in the will. In those cases, a person who is an heir or a child of the deceased may be able to file a declaration of heirship to have the court declare that they are an heir or a child of the decedent and entitled to their share of the property.

What you should know

Remember, the two year limitations period applies to will contest. The time is measured from the time the will is admitted to probate.

Other States

Many states have much shorter statute of limitations for contesting a will. In New Jersey a person must file a will contest within 4 months after a will has been admitted to probate unless they are from out of state – then they have 6 months. Texas’ statute of limitations on contesting a will are more generous than most states.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Contesting a will in Texas

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