Probating a Will in Texas: a Quick Overview

EDITOR’S NOTE:

Most legal proceedings have deadlines: certain actions must be taken within specific time frames as provided by Texas law. However, in some situations, an applicant may have fallen outside the required deadline but can still petition a court to probate a will. This blog post explores this issue, of importance not just to residents of Dallas county but to anyone in Texas.

Posted: April 21,2016

The ability to probate a Will is a legal right. A person can waive that right in a variety of ways. One of the most common ways a person waives the right is by waiting too long to exercise it. When a person waives the right, we call it default. And when a person defaults, our courts properly deny that person the right to probate a Will.

As a general rule, a Will may not be admitted to probate after the fourth anniversary of the death of the person that made the Will.One limited and special exception exists for this rule. After more than four years have passed, a Will may be admitted only as a muniment of title.  Even then, the Will’s proponent must show that he or she is not in default for failing to offer the instrument within

Probating a Will

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those first four years.

Applicants that might be in default come up with a variety of excuses, and, to be honest, our courts are generally pretty forgiving when they accept a late Will. Cost is a frequent excuse, as is a person’s lack of knowledge of the law. In uncontested cases, our courts can frequently look the other way and allow the Will’s admission after four years. In contested cases, a person’s excuse must survive additional scrutiny.

When deciding whether or not default has occurred, the court’s analysis is twofold. First, a court considers the longstanding public policy confirming the importance of timely probating wills to determine if that policy is served, or thwarted, by admitting a will to probate outside of the statutory time limit.Second, a court must necessarily consider the specific actions, or inactions, of the will’s proponent to determine if he or she has been reasonably diligent with respect to presentation of the document.

If default is the lack of reasonable diligence, then we should all be diligent to seek the admission of a Will within four years. The courts may be very forgiving on this confusing limitations statute, but even that forgiving approach has its limits.

EDITOR’S SUMMARY

This blog post explored the issue of probating a will after four years. It is, of course, very important to meet all legal requirements including deadlines if at all possible. However, in some circumstances, a good lawyer can petition the Court for an exception. If you or a loved one is facing a probate dispute in the Dallas area, our attorneys are happy to conduct a quick phone consultation to discuss how they can help with a probate dispute such as a dispute concerning a will.