Texas Supreme Court Decides Standard For Filing A Will After Four Years

The Texas Estates Code provides that a will must be filed within 4 years of the death of the testator. A will can be filed after that time if the applicant is not “in default.”

The Texas courts have struggled with the issue of what “in default” means and how it is to be applied. Some Courts have held that the default of someone else may be imputed to you. For instance, what if your mother did not probate your father’s will within four years? You discovered the will after your mother passed away and need to probate it. Can you or is your mother’s default imputed to you? The Texas Supreme Court resolved all of those issues in a case decided in 2019. 17-0901, 575 S.W.3d 331.


Occasionally, a will is found more than 4 years after the testator died. Getting that will file for probate so that they will be a good chain of title to the testator’s property can be difficult. A will can be filed after 4 years if the applicant is not “in default.” What that phrase means has trouble Texas courts for many years. Some courts have applied the fault of a predecessor to the applicant and ruled that the will could not be admitted to probate because the predecessor was “in default.”


A man’s wife died. She left a will leaving everything to her husband. Her husband did not file the will for probate. More than 4 years later, the husband died. He left a will leaving everything to his 1st wife. As the 1st wife was going through his belongings, she found the will of his 2nd wife and filed it for probate. The children of the 1st wife opposed the probate saying that the husband was in default and therefore his 1st wife was also in default. The trial court agreed. On appeal the Court of Appeals agreed that the 1st wife was in default because the fault of the husband was applied to her. The case was then appealed to the Texas Supreme Court.


A Texas statute provides that “a will may not be admitted to probate after the fourth anniversary of the testator’s death unless . . . the applicant for the probate of the will was not in default in failing to” probate the will within that period.

In Faris v. Faris,  we held that a devisee’s default is imputed to his own devisee, though the latter is not himself in default. But the statute plainly states that it is the applicant who must be in default for limitations to run. We have never cited Faris, and today we overrule it. We vacate the lower courts’ judgments and remand the case to the trial court.

The statutory standard for permitting or disallowing probate of a will after the four-year mark is whether there is proof that “the applicant for the probate of the will was not in default”. There is no mention of potential default by anyone else.

(W)e also reject the test applied by the Seventh Court of Appeals that permits inquiry into whether permitting the late probate of a will would “work an injustice or frustrate the intent of the testator”… “Equity, like beauty, is often in the eye of the beholder.” The statutory text as written prevents litigation over the equities of a particular case and the inconsistent and unpredictable results that inevitably follow. 

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Texas Supreme Court Decides Standard For Filing A Will After Four Years

Is a will written on a tablet computer valid?

The Chronicle-Telegram reported that an Ohio judge admitted to probate a will written and signed on a tablet computer (Samsung Galaxy tablet.)  The testator was at the hospital and did not have paper or a pen. After he died, the family printed out the will and filed it for probate. The judge ruled that it was a valid will although he found “scant evidence of this having been done elsewhere in the country.”

I’m not sure that this will would be admitted to probate in Texas but it does point out that times are changing and the legislature needs to address these electronic devices that we use everyday but that were not around when the statute of wills was first enacted.

THE AUSTRALIAN reported on November 7, 2013 that a will written on the “Notes” app of an iPhone was upheld as a will also.

“A WILL typed into an iPhone ‘Notes’ app has been declared legally valid by the Supreme Court in Brisbane in a landmark legal ruling.
In what may be a legal first in Queensland, and possibly Australia, the Supreme Court ruled that the will typed into the smartphone but not written out or signed would stand.
But estate litigation lawyer Charlie Young, who sought the court’s ruling for the brother of the man who died, said the court’s declaration does not open the floodgates to people using mobile phones for do-it-yourself wills.
Mr Young, senior associate and estate litigation lawyer with Brisbane firm Bennett & Philp Lawyers, said the circumstances of the iPhone will were very sad and involved a young international resident who lived and worked in Australia.
In September 2011 the man faced an intense personal crisis. With no witnesses he used a “Notes” app on his iPhone to tap in a will shortly before ending his life.” Thanks to Bethanie Castell @bethcastellTGB on Twitter for pointing me to this article.

Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.

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