A Will, by itself, is not effective to convey title, possession, or interest in property. A Will must first be admitted to probate. Generally, under Texas law, a Will must be admitted to probate within 4 years of a person’s death. This process is known as “probating a Will.” Failure to probate the decedent’s Will within this 4-year time period typically means that the Estate will pass under intestacy laws, as if the deceased had no will at the time of their death. For many, this means that the last wishes of a loved one become only words written on paper – with no binding effect on the Estate.

The primary reason for this 4-year statute of limitations is to protect subsequent purchasers of a decedent’s real property. After the 4-year anniversary of a person’s death, if another person pays value, in good faith, without knowledge of the existence of a will,  for a property from the decedent’s heirs, then they will hold superior title against any devisee under any will that is subsequently offered for probate.” (Texas Estates Code: Sec. 256.003(c).)

However, this 4-year time period is not an absolute statute of limitations. Instead, the State of Texas requires that “a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.” (Texas Estates Code: Sec. 256.003(a).)

Under this statute of limitations, a Will can actually be filed for probate as a muniment of title at any point after a person’s death, as long as the following events have not occurred:

1.     The property has not been sold by an heir of the decedent’s estate through intestacy; and

2.     The applicant for the probate is not “in default” for filing the Will four years after the testator’s death.

This leads to one obvious question: What does “in default” mean?

Under Texas law, a person is considered “in default” when they fail to use reasonable diligence to admit the Will to probate. This is determined on a case by case basis, but generally “reasonable diligence” means that a person seeking to admit a Will to probate must show a valid reason why they delayed to submit the Will to probate within the 4-year time period.

Historically, holding a Will due to a family agreement or simply not knowing that a Will must be probated within 4 years, is not a valid reason – applicants in such cases have been found in default.

However, valid reasons for not filing a Will within the four-year period are numerous and Texas Courts have regularly admitted wills to probate when the following facts existed:

1.     A Will is concealed or unknown to the applicant until after the four-year time period;

2.     A Will is offered to establish a link in the chain of title to property to perfect title by the applicant (and not to inherit under the Will);

3.     An applicant seeks legal advice and is told that probate is not needed;

4.     An applicant has limited resources; and/or

5.     An estate is believed to contain no assets or value but is subsequently determined to hold previously unknown assets.

The attorneys at Mazurek, Belden and Burke, PC, recently secured valuable mineral interests for a beneficiary of a Will filed for probate sixteen years after the death of the testator. Thankfully, the last wishes of our client’s grandmother were able to be honored, despite being filed after the statutory four-year period.

For more information regarding Estate Planning, Tax Consulting, Probate Matters, or Real Estate, please contact our office.

This blog is made available by Mazurek, Belden & Burke, PC, for educational purposes only, and not to provide specific legal advice. This blog does not create an attorney client relationship between you and Mazurek, Belden & Burke, PC. This blog should not be used or considered as a substitute for competent legal advice from a licensed attorney in your state. If you have any questions about this topic, please contact us.