Posted on | January 24, 2011 | 3 Comments
The Texas Probate Code, §73, requires that a will be probated within four years of the death of the testator “unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years…” So the question in all of these late filing cases revolves around the issue of “default” of the one who files the will for probate.
In a 2010 case, a Texas appeals court found that the proponent of the will was not in default even though she filed the will for probate more than ten years after the testator had died. The evidence listed by the court was that the proponent had limited financial resources: she testified that she could not afford to pay her former counsel and she had to apply for a loan to fix some doors that were falling apart. Moreover, she testified that her educational background was limited to grade school. She believed it was unnecessary to probate the will; she did not know there was a time limit to probate a will. The children of the testator never asked for a share of his estate prior to this action. She also believed the the lawyer had taken care of the matter regarding the will. It was not until a third party, the children of the testator, filed the petition for determination of heirship that the proponent became aware of the need to probate the will, and she did so within thirty days of the children’s petition. After reciting these facts, the court said “As such, the record shows there was no absence of reasonable diligence … in probating the … will, and so she was not in default. 324 S.W.3d 257.
Although it is difficult to do because you must prove that you were not “in default,” it is possible to probate a will more than four years after the testator has died.