It’s not unusual for the family of a deceased person to not probate their will. Perhaps they don’t realize that they need to do anything with the will, or maybe they’re still grieving the loss of their loved one or are in shock. Other times, a surviving heir may think, “It’s too expensive to probate it” or “It’s not worth the hassle to probate the will.” Unfortunately, this line of thinking can prove financially dangerous.
Texas law requires that a will be administered through probate within four years of the testator’s death. Failure to do so can have serious repercussions for the legal transfer of property and assets belonging to the deceased.
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Texas Statute of Limitations For Probating a Will
Probate is the process by which a deceased’s property is legally transferred to their heirs or beneficiaries. Everyone has an estate, even if it’s modest. Your estate is the sum of all your personal property, real estate, vehicles, bank accounts, and other assets. Probate is how this property legally becomes your heirs’.
If you don’t write a will, your estate still goes through probate, and Texas intestacy laws (statutes that determine who inherits without a will) govern the dispersion of your property.
For many families, a will represents the last wishes of their loved one and should be honored or respected. But if you leave the will unprobated for too long, your loved one’s wishes may not be honored. Texas law sets a statute of limitations of four years to probate a will; otherwise, the property will be transferred to the next-of-kin per state inheritance laws.
Why is There a Four-Year Limit on Probating a Will?
The statute of limitations is intended to protect the property rights of a purchaser of the deceased’s property. After four years, the purchaser of the property has a superior title to a beneficiary of a will that has not been probated. For example, your loved one owned a house, but their will was not probated. Someone purchased the house five years later. The house’s new owner has a superior claim to the title, even if a will is presented, leaving the house to you. You’ll have a lot of trouble reclaiming the property in that case, as Texas laws protect the new purchaser.
Exceptions to the Statute of Limitations For Probating a Will
There are a few narrow exceptions to the statute of limitations. A Texas probate court can accept a will for probate if more than four years have passed since the deceased’s death but you’ll have to show that you are not “in default” for failing to file the will within the 4 year period. You will also need to show that Letters of Testamentary or Letters of Administration are needed to receive or recover property due a decedent’s estate.
In some situations, the beneficiaries named in the will can present the will as a muniment of title to secure ownership of the property. However, the decedent’s heirs – who may be different people from the listed beneficiaries – are entitled to notice of the probate and could challenge the will being admitted.
What Conditions Must Be Met To Probate a Will After Four Years?
Judges evaluate these cases on an individual basis. In general, you are considered “in default” if you failed to exercise reasonable diligence in entering the will into probate. You must show a valid reason why the will wasn’t presented within four years.
If you simply didn’t know that a will must be probated within 4 years, or if a family member had the will but didn’t process it, your application may be found to be in default.
There are some valid reasons that Texas probate courts have accepted a will after the four-year period and supported its use:
- The will was unknown to the applicant, or the will was concealed from the applicant.
- An attorney told the applicant that probate was not necessary.
- The estate was not thought to have contained anything of value or no assets; however, it was subsequently determined that the estate did contain assets previously unknown.
- The will is used to establish a link in the chain of property ownership and is used to perfect the title of the property by the applicant (not for it to be inherited under the will).
These may not be the only exceptions. An experienced probate attorney can evaluate your case to determine if you reach the appropriate threshold for a probate judge to consider you not in default.
Help From a Texas Probate Lawyer
If you suspect your loved one’s will is valid and should be probated, contact an experienced probate attorney as soon as possible after their death. If the 4-year window for probating the will has passed, an attorney can advise you on your options.
