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Can you probate a will after four years?

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.

Comments

3 Responses to “Can you probate a will after four years?”

  1. Mike Moeller
    August 21st, 2011 @ 4:09 pm

    What was the name of the 2010 Texas Appeals Court Case?

  2. virgina collum
    January 21st, 2012 @ 7:39 pm

    my grandfather died in texas in 1976 he was survived by my grandmother and her 2 adult sons and my mother who died in 1990. He passed without a will when he passed i was only 6 yrs old barely remember the funeral. Grandmother died in 2004 she made will leaving her house to her son she had before marrying my grandfather and my mothers real brothers son. my brother and i lived in alabama at the time of the her death I lived her all my life and my brother went to live mothers brother in texas at age 6. When grandmother passed they called to let us know and said there was no reason for us to come out and my brother and I was like hmm guess we wont hear from those aunts and uncles and cousins no more. Then I was told the house was left to the cousin and he sold the house. I didnt know the laws and didnt think anything of it until last week I get a email saying he needs me to sign this document and notarize it he was selling grandmothers house. The upkeep, taxes and all was too much to handle. I was dumb founded because i was told he sold the house. That my half uncle got mad leaving him with it all because he made to feel uncomfortable and he started over close to his daughter. He had lived with grandmother for 15 years. But he was half brother and no rights to the place and grew up in that house like the rest of the kids did. Well i started asking my cousin questions and he been renting this house for 8 years to a couple of guys that worked at the prison system and was told they did work on the house and the house isnt much but its worth something and the only reason I know now that i have rights to my pawpaws half of the house is because he cant sell it without my permission and my brothers permission. He says mac and i will get our part but my other uncle didnt get his part and nothing was said about it when he signed those papers he didnt read. I mean what can I do about this issue..8 years is along time to find you got interest in property that you didnt know u had and thought it was sold years ago. But it was used as income for my cousin that by law doesnt even own but a percentage of this house and land.

  3. Robert Ray
    January 22nd, 2012 @ 4:19 pm

    This is a blog for information. If you need to ask questions, you should visit our main site, http://www.TheProbate.Net.

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