Is it Too Late to Probate the Will?
You’re going through a loved one’s papers and come across a will. The person who wrote the will (a Texas resident) died years ago. What do you do?
First Things First
First, you should surrender the will to the county probate court where the deceased person lived. Texas law requires you to file with the court the original version of the will of anyone whom you are aware is deceased. Surrendering a will to the county makes it available for any beneficiaries who might want to probate the will.
To Probate or Not to Probate
Texas imposes no legal obligation to probate a will. If a will is never offered for probate, the property of the testator, the person who made the will, passes according to the Texas laws of intestacy as if they died without a will. However, you might want to offer the will for probate if it has favorable terms, or to transfer title of any real property that belonged to the testator.
You don’t have to go to court for title to pass by intestacy. But if you try to sell real property you inherited, the title company might require you to take steps to clear title. That might include asking the probate court to determine the heirs of the person who died and how his or her property passed under Texas law. If you must go to court anyway, you might consider probating the will you found.
As a rule, courts are not supposed to admit a will into probate more than four years after the testator has died. If it has been more than four years, an exception permits wills to be probated if the applicant offering the will for probate provides an equitable explanation for the delay.
Unfortunately, the reported cases in this area of law do not provide a predictable basis for determining whether the applicant is “in default” for the delay. This is because these cases are so fact specific.
For example, in one case an impoverished widow was permitted to probate her husband’s will, even though he died more than five years before she learned he owned royalty interests.
In another case, a successful attorney with an oil and gas practice, who learned about mineral interests 14 years after his father died, was told he could not probate his father’s will. The applicant was found to be in default because the son “should have known that unexpected events [like discovering mineral interests] often happen in life.”
A recent case from the Supreme Court of Texas provides another example of how courts focus on the particulars of the applicant’s situation. In this case, the independent executor tried to probate the will of a deceased man’s wife because the husband failed to probate his wife’s will during his lifetime. The courts held that the executor could not probate the will on behalf of the husband because the husband had failed to do so within four years of the wife’s death. However, the supreme court also found that, in this particular case, the executor had standing to offer the will in the executor’s personal capacity and was not at fault for the delay.
Even if the person who made the will died more than four years ago, it might be worthwhile to try and probate the will anyway, particularly if the applicant did not personally delay in offering the will for probate.
If you have found a loved one’s will long after their passing, and need help surrendering it to the court or would like to probate the will, seek the counsel of an experienced probate attorney.
Partner Chris Wilmoth focuses on probate, trust, and guardianship litigation. He also conducts mediations and accepts appointments as a special judge, trustee, administrator, and guardian of the estate. In recent years, Mr. Wilmoth has acted as lead counsel in will contests, trust modifications, contested guardianships, and breach of fiduciary duty lawsuits. He supervises the firm’s handling of numerous uncontested probate and guardianship proceedings.
 Tex. Estates Code § 252.201.
 Tex. Estates Code § 256.003(a).
 St. Mary’s Orphan Asylum of Tex. v. Masterson, 122 S.W. 587, 592 (Tex. Civ. App. 1909, writ ref’d). The Estates Code provides that the applicant not be “in default” in offering a will for probate more than four year after the death of the person who made the will.
 Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).
 In the Estate of Rothrock, 3112 S.W.3d 271 (Tex. App.—Tyler 2010, no pet.).
 Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019).