What if You Don’t Probate a Will in Time?
When someone dies with a Will, with few exceptions, the Will must be probated for their property/estate to be transferred to their loved ones in the way directed by the deceased in their last will.
Probating a Will means asking the court to admit the Will so that it can be followed and the property in the estate can be transferred to those named as beneficiaries. Probating a Will is usually easy and straightforward.
Time Limit for Probating a Will
Many ask, "How long do you have to probate a will?" While there is no time limit on the actual probate application, that does not mean the entire probate process is without time limits. For instance, there is a time limit for probating a will.
What would happen if a family member dies with a Will and the Will is not probated – for example, if a husband dies and his wife never probates the Will? She stays in their house, and it is assumed everything is fine because the Will states that everything was left to her by her husband. Then, years later, the wife passes away.
The couple’s children try to sell the parent’s house and realize that their father’s estate still owns a portion. They read their father’s Will and left it to his then-living wife, but the Will was never probated after he died, and the question arises, “Is there a time for probating a Will?”
How Long Do You Have to Probate a Will in Texas?
In Texas, the executor of an estate has four years from the date of the testator's death to file for probate or to use the Will as a Muniment of Title for transferring property without a formal Probate proceeding.
Is all lost at this point in the example above for the family? Not necessarily. Depending on the facts and circumstances, the Will may still be able to be probated with additional notice requirements laid out in the Texas Estates Code.
The court will have to determine that the person offering the Will for probate is not in default for failing to present the Will for probate during the four years immediately following the death of the Will’s author.
One appellate case defines the word “default” in the statute as a “…failure to probate a will due to the absence of reasonable diligence on the part of the party offering the instrument.” Orr v. Walker, 438 S.W.3d 766, 768 (Tex. App–Houston [1st Dist.] 2014, no pet.).
What Happens if a Will Is Not Probated in Time? Is All Lost?
If the four-year period has run out and an exception is unavailable, the family still has options for transferring the property.
When someone dies in Texas without a valid Will, the state of Texas has written a Will for them. It is called intestate succession. This process is contained in the Texas Estates Code and lays out the path that the property title or ownership will follow upon the death of an individual without a valid Will.
The actual process can include the probate of the deceased's estate under court supervision, also known as a dependent administration. A dependent administration can be converted to an independent administration with the agreement of all the heirs, or, depending on the type of property, an heirship proceeding may be appropriate.
Fortunately or unfortunately, with the increasing number of multiple marriages and children from more than one marriage, all of the children of a deceased person have an interest in the property that the deceased person owned at the time of death. If a person dies without a valid Will in Texas.
Perhaps you will find yourself in a similar situation–with a Will or piece of property, real or personal, owned by a person who has been dead for more than four years, and you are asking, “What Do I Do”? David S. Bouschor II can help with this. Call David online or today at (940) 202-8323.