111111

Interesting Developments In Inheritance Laws

My practice is limited to trials involving inheritance disputes including will contest, related property disputes and associated torts. To ask privately about a Texas litigation issue involving an inheritance dispute, click the big red button to go to our main site's contact page and ask a question privately.

When a will is found after probate, does the two or four year limitations period apply?

Filing a will in Texas after another will has been admittedTexas Will Is Found After Probate

In two cases where wills were offered for probate more than two years after a prior probate judgment, one court held that the second will could be admitted to probate and the other court held that it could not. What is the difference?

Newer Will

In the first case, an older (1965) will was admitted to probate. More than two years later, a newer will (1968) was offered for probate. The appeals court ruled that the 1968 will should be admitted even though it was offered more than two years after the 1965 will had been admitted to probate. The court relied on §73 which requires that a will has to be filed within four years of the death of the testator. The court said that filing the new will was not a direct attack on the fist judgment which would be barred by the two year limitation period of §93 but was a process of filing a newer will within four years which was allowed by §73. Morris, 577 S.W.2d 748.

Older Will

In the second case, no will was found. A probate was filed seeking a determination of heirship and the appointment of an independent administrator. More than two years after the determination of heirship and the appointment of the independent administrator, a will was filed for probate. The appeals court ruled that the will was filed more than two years after the probate judgment, was a direct attack on the judgment and was therefore barred by the two year limitation period. The court distinguished the first case by saying that in the first case, the second will revoked the first will but here in the second case, there was no will to revoke. Therefore, it reasoned, the second will could not be filed after two years from the original probate court judgment. Rogers, No. 08-09-00249-CV, El Paso.

Differences In The Two Cases

While the two cases seem to go in different directions, it should be noted that the ruling in both cases favored the children over the husband (first case) and the family over friends (second case.) Many rulings in probate matters seem to prefer the closer relatives over the distant relatives or the family over strangers.

For The Limited Purpose of Revoking a Will

Finally, a will that cannot be admitted to probate because it is filed too late may still be used to revoke a prior will that has been admitted to probate. In a case from the Dallas court of appeals, a will was admitted to probate. After the time for admitting wills to probate (in this case, four years after the death of the testator) several relatives offered a newer holographic will (actually four holographic will) that revoked the will admitted to probate. The trial court admitted the holographic will(s) for the limited purpose of revoking the will previously admitted to probate. The trial court held that the holographic will was filed too late to get it probated. The court voided the previous probate because the will had been revoked. The effect of the ruling was that the decedent died intestate (without a will.) 542 sw2d 901.

Was This Post Helpful

It may also be helpful to others so consider sharing it on Facebook, Twitter, Google+ or Linkedin by clicking the buttons.

Contact Us.

By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.

Like Us on Facebook

Follow Us On Twitter

Contact Us

We handle litigation involving inheritance disputes. We don't prepare wills. We handle a select few cases on contingency. Don't use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.


Posted in Contesting wills, Inheritance, Probate, ProcedureTagged , ,

2 Responses to "When a will is found after probate, does the two or four year limitations period apply?"

X