Application for Probate More Than 4 Years After Testator’s Death
A will may not be submitted to probate after the fourth anniversary of a testator’s (person who made the will) death unless it is shown that the person applying for probate was not in default in failing to bring it to probate sooner. Here default means failure to probate a will due to the absence of reasonable diligence on the part of the party offering the instrument. In other words, so long as the party offering the will has acted with reasonable diligence up until the point of application, the will can still be probated even after the four-year anniversary of the testator’s death. The 2022 case of Marshall v. Estate of Freeman looks closely at what is required to meet this standard of diligence.
Probate Case
Marshall v. Estate of Freeman, NO. 03-20-00449-CV (April 29, 2022)
Facts of the Case:
This case was brought to the court by Horace Marshall. Prior to this appeal, a trial court had admitted the will of Jupitor T. Freeman to probate 41 years after Jupitor T. had died. Horace Marshall argues that the trial court made a mistake in doing this, and that the will should not have been admitted to probate. The higher court found that the record was devoid of evidence showing that the executor, Hobert Freeman, was not in default when he applied for probate, and therefore, the will should not have been admitted.
Probating a will in Texas:
A person who has custody of a will, generally the executor, is charged with knowledge that it must be filed for probate within the statutory period to rely on it, whether the necessity for doing so is apparent to him or not. In other words, whether the party who holds the will knows it must be filed for probate within a certain amount of time or not, he will suffer the consequences if he does not file within that time. Ignorance of the law is not an excuse for failure to comply with the statute.
Can you probate a will after 4 years in Texas?
However, Texas courts have been quite liberal in admitting a will to probate after the four-year limitation period has expired so long as the party submitting it can show an excuse for the reason of the failure to offer the will earlier. Though ignorance of the law is no excuse, a belief that probate is unnecessary, coupled with a concern over the possible cost of probate, can be a sufficient reason for admitting a will to probate more than four years after the death of the testator. Also, generally, a party applying for probate would not be considered in default if he or she did not know of the existence of the will, provided the party was not negligent in failing to discover whether there was a will, i.e., they practiced reasonable due diligence after person’s death in looking for their will.
Texas probate requirements of an executor
To determine if an applicant is in default or not, courts must look only at the applicant’s actions. Their actions are the sole indicator for deciding whether they practiced the diligence required.
Burden of proof at a hearing under Texas Estates law
The burden is on the applicant to show that he was not in default in failing to present a will for probate within the proper time. In other words, the applicant must be the one to offer the evidence to prove they are justified in offering the will after the statutory period.
Why there was no order admitting the Will to probate
Here, the court found that no evidence supports a conclusion that Executor, Hobert Freeman, acted reasonably diligently in probating the will upon discovering the will and the need for probate. Freeman did not apply for probate of the will until a year after his lawyer told him he needed to do so. Although the executor only had an eleventh-grade education, lack of experience acting as executor of a will, and lack of legal sophistication these are not excuses for his decision to wait as long as he did. There is also no evidence in the record that he lacked funds to hire a lawyer other than perhaps an inference from the fact that the taxes on the property were past due, and the court found that inference is undermined by the fact that Freeman learned that the will needed to be probated by consulting a lawyer. Because Freeman had the money to access the knowledge he needed about being an executor through a lawyer, and he had no excuse for delaying his application for probate a year after his discovery of the will, the decision of the lower court was overruled, and it was found that the will should not have been admitted to probate.
Do you need to hire an Experienced Probate Attorney to File a Will with the Probate Court?
If you are considering making a will, or if you have already made a will but would like to know whether it is valid, please contact an experienced probate attorney. An experienced attorney can review your will for errors and can also provide guidance on how to make sure that your will is valid in light of current laws in Texas. Call us today for a FREE attorney consultation. (469) 895-4333.
Related questions
What happens if you do not probate a will in Texas?
If you do not probate a will in Texas, the law states that your property will be distributed according to the terms of your last will and Testament. This means that whoever you named as your executor (or personal representative) in your will will be responsible for carrying out your wishes regarding your estate. If you do not have a will, the law states that your property will be distributed according to the laws of intestacy. This means that your assets will be divided among your heirs according to their percentage share of the total value of your estate.
Do all wills have to go through probate in Texas?
If you hold a will, it is important to know that ignorance is no excuse. In Texas, all wills must go through probate unless they are specifically exempted. This means that if you create a will and do not know that it needs to go through probate court, your estate may be subject to litigation and could even be seized by the government. If you are an executor and are unsure whether your will needs to go through probate, it is best to speak with an attorney.
Is there a penalty for not probating a will in Texas?
If you die without a will, the law in Texas says that your estate will be distributed according to the laws of intestate succession. This means that your assets will be distributed among your closest relatives, who may not have your best interests at heart. If you die with a will but don’t appoint a personal representative to carry out the terms of the will, your estate can be subject to probate. Probate is the process of transferring ownership of property and other assets from one person or organization to another. In most cases, this involves filing documents with the county court where the property is situated.
There are a few exceptions to probate in Texas. First, if you leave specific instructions about how your property should be distributed, probate isn’t necessary. Second, if you’re incapacitated at the time of your death and didn’t make a will, your estate won’t go through probate even if there’s no other authority overseeing it. Finally, if you die as a result of criminal activity, your estate won’t go through the probate process even if you have a will. The consequences of not having a will in Texas can be substantial.
What invalidates a will in Texas?
One of the most common questions that probate lawyers see is whether a will is valid if the testator was not aware of its contents at the time it was executed. In Texas, a will is considered invalid if the testator was not legally capable of making a will at the time it was executed. This means that if the testator was under 18 years old when he or she made the will, or if he or she was mentally incapacitated at the time, the will is not valid. Additionally, a will is invalid if it was made while the testator was under a legal incapacity, such as during an alcoholic intoxication.
What if the executor does not probate the will?
If an executor does not probate a will, the law states that the deceased’s property will be distributed according to intestate succession. This means that the deceased’s closest relatives will receive their share of the estate before any outside parties. This can create some serious problems if the person who is supposed to be handling the estate is not familiar with Texas probate law. If there are any questions about how the estate should be administered, it is important to contact a Texas probate lawyer.
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