Can You Have an Heirship Determination if There is a Will?

Can You Have an Heirship Determination if There is a Will?

Heirship Proceedings in Texas

The Texas Estates Code provides that the probate court

“may conduct a proceeding to declare heirship when…a person dies intestate owning or entitled to property in this state and there has been no administration in this state of the person’s estate.” §202.002(1).

That section came into play in a case decided by the Amarillo court of appeals, 07-21-00137-CV.

Facts

In the case, a sister, Wanda, filed her brother’s will for probate, which left his property to her. She claimed that he lived in New Mexico but was domiciled in Texas. The will was admitted to probate, but the estate was never closed. Almost two years after the will was admitted to probate, a woman, Ginger, filed a bill of review claiming that she was the brother’s common-law wife and asked the trial court to determine the brother’s heirs. Ginger claimed that she was a pretermitted spouse under New Mexico law and that New Mexico law applied because the brother/husband lived in New Mexico.

Wanda filed a motion to dismiss the claim because the brother left a will, and she claimed that the court could not have an heirship determination if the decedent had a will, relying on §202.002(1). The trial court agreed and dismissed Ginger’s claims.

Appeal

When Ginger appealed, the court of appeals reversed and sent the case back to the trial court to hear Ginger’s claims. The appeals court ruled that §202.002(1) did say that a person had to die intestate before an heirship determination could be heard, but the additional language “and there has been no administration in this state of the person’s estate” made an exception for Ginger to have an heirship determination. Wanda cited a Texas Supreme Court which dismissed an heirship determination, but the appeals court noted that the administration had been closed in that case, it had not been closed in this case.

What Could Have Done

If Wanda had closed the case, would that have helped? There are reasons to leave an estate open, but in this case, if Wanda knew Ginger was around and might do something, it would have been better to close the estate.

Read About A Muniment Of Title In Texas

Read About A Muniment Of Title In Texas

Muniment of Title means to probate a will quickly and cost-efficiently when there is no need for administration of the estate. A court may probate a will as a Muniment of Title if the court finds that the will should be admitted to probate, that there is no need for an administration, and that there are no unpaid debts of the estate other than liens on real estate. One of the purposes of this limited form of probate is to provide continuity in the chain of title to estate properties by placing the will on the public record.

In normal probate where an executor is appointed and files his oath, Letters Testamentary are issued by the clerk to the ExecutorLetters Testamentary are the documents that show that the Executor has been duly appointed and is the legal owner of the estate’s property. Legal ownership needs to be distinguished from beneficial ownership. The beneficial owners are the persons named in the will to receive the property. The Executor is the legal owner which gives him the right to gather all of the assets of the estate to distribute to the beneficiaries. The Letters Testamentary are required by many financial institutions before they will release accounts belonging to the decedent. Letters of Administration are the exact same thing but are issued when an Administrator is appointed rather than an Executor. An Administrator is appointed when there is no will. Filing a will as a Muniment of Title can make the probate process easier if no administration is necessary and no debts are owed by the estate.

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

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

Two Years

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 TexasTime Limits
You know you are an heir2 years from date will admitted to probate
Minor2 years from date of majority
FraudNo 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 elapse.  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 whenever 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 Administrator 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 latter 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 latter 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.

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Can you probate a will after four years?

Can you probate a will after four years?

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?

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.

Problem

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.”

Facts

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.

Ruling

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

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