Can I Probate a Will After Four Years?

Originally published by Michael Cohen.

Texas law requires filing for probate (the process whereby the court determines if the Will is good) within four (4) years – but not always. A Will can be admitted as a “muniment of title” after four (4) years if the proponent is “not in default” pursuant to the Texas Estates Code. A recent decision of a Texas appellate court determined “Texas law is quite liberal in permitting a Will to be offered as a muniment of title after the four-year limitation period has expired.”  The court determined that the proponent “did not offer the Will for probate, not through lack of diligence, but because he did not realize any further action was necessary.”

Some courts are more liberal than others in their determination if the proponent of the Will is in default. Usually, courts require all potential heirs at law to be at least notified prior to admitting the Will. It is often necessary to probate the will (even if after four (4) years) if the pattern of disposition under the Will is different than under the laws of intestacy (if the deceased had no will). For example, if a married couple purchased a home together but the spouse that dies first had children born from a different relationship, then under laws of intestacy the children of the prior relationship would own an interest in the home even though the Will indicates “all to spouse” unless the Will is probated (the court issues an order that the Will is valid). Many simply wrongfully assume that if they purchase the property together, it automatically passes to the survivor.

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