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Don't Wait Four Years

By: Paige H. Jones

We routinely have clients come to us to probate a will more than four years after the death of a loved one. A common reason is that they have recently decided to refinance or sell real property owned by the deceased. Other reasons include not realizing the will needed to be admitted to probate to be effective, only recently discovering property that necessitated probate, or they just didn't have the funds to hire an attorney at the time.

If you wait too long, you may be out of luck.

Sec. 256.003 of the Texas Estate Code states 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."

Default means "a failure due to the absence of reasonable diligence on the part of the party offering the instrument." The burden is upon the proponent of a will to show that he was not in default by not presenting a will for probate within the proper time.

Even if you can show that you were not in default, under no circumstances can a Texas probate court appoint an executor more than four years after the testator's death. The court will only admit the will as a Muniment of Title, which can be used to clear title to real estate.

Additionally, all intestate heirs of the testator must be served and given an opportunity to oppose the application to probate filed more than four years. It is not a big issue if the intestate heirs are the same as the beneficiaries in the will. But if they are different, it can cause a lot of difficulties, including an increase in legal fees because of the additional requirements.

If the court refuses to admit the will to probate, the testator is said to have died "intestate," or without a valid will. His or her estate will then pass according to the rules of descent and distribution set forth in the Texas Estates Code. This can be disastrous when the distribution plan in the will does not follow the intestacy statutes. Married people with children outside the marriage might be surprised to learn that most of their property does not pass to their spouse, but instead to their children.

Here's what I tell most of my clients who call when someone in their family has just passed away. My advice: take time to grieve, love on your family, catch your breath. Then call us and let us take a look at the will and give you a recommendation on probate. There is no rush. Just don't take more than four years.

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