POSSIBLE CONSEQUENCES OF NOT TIMELY
FILING A WILL FOR PROBATE

James M. Bright, Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

When asked when a will should be offered for probate, the response usually given by this firm is, “After you have had a reasonable time to grieve, but before it has been added to that ever growing list of things that need to be done but are easy to put off.”  It should also be noted that, in spite of this attempt to offer time to grieve, in many cases action must be taken right away after a death to conserve and protect assets.

 “Timely” as used in this article shall be defined to be fewer than four years after the date of the testator’s death.  Failure to probate a decedent’s will or otherwise settle the estate within this four-year time period can yield some unintended results and/or result in higher costs coupled with lost availability of more satisfactory remedies.

The Texas Probate Code in Article 73(a) makes it very clear that no “letters testamentary” will be available after the expiration of four years.  Although no letters testamentary can be issued, it is still possible to settle an estate (Muniment of Title, etc.) even if more than four years have passed and if conditions which can excuse that applicant from waiting more than four years exist.  It must be noted that these conditions must, however, exist and must be capable of being proven by clear and convincing evidence of the fact causing delay.   These reasons might include an allegation and proof that the existence of the will was not known and could not reasonably have been known during the initial four-year time period.  It is evident that an excuse of “I just never got around to it” is not going to be a sustainable excuse for the failure to file.

Article 128B of the Probate Code sets out and establishes additional notice requirements which must be followed if the will was not timely offered for probate.  The  code places the burden upon the proponent of the will to have each and every person who is an heir (whether or not named in the will) served with citation if their address can be ascertained with reasonable diligence.  If the addresses cannot be ascertained, the Court will appoint an another attorney to serve as ad litem and to represent the interests of the heirs who have not been given notice by citation.

 Together, Articles 73(a) and 128B of the Probate Code can produce some unintended results if the will was not timely filed for probate.  These results can range from costs being greatly increased to having the will not recognized resulting in the testator dying intestate.

For example, if we consider what happens to a “plain vanilla” probate proceeding that could easily have been resolved in four or five weeks and at a very low cost if the will had been timely filed, we can easily see some of the possible unintended results which can, and likely will, occur because of delay.

Assume, for demonstration purposes, that: 

• John died leaving a will giving all of his property (both community and separate) to his beloved Jane to whom he has been married for the past 30 years;
• John had been married briefly before he and Jane met and is the father of a child, (Joseph) that has chosen not to have a personal relationship with John during the past thirty years;
• Jane was named in the will to act as independent executrix;
• Jane did not see the necessity of offering  the will for probate within four years because she erroneously believed that, because she and John had acquired all of their property together, it all now belonged to her;
• Jane is now in need of selling the vacation home that she and John purchased  together 20 years ago.

Based upon the above-stated facts, Jane has forfeited valuable rights by her delay in probating John’s will.

• She can no longer serve as executrix of John’s estate;
• She can no longer depend upon the will to protect her property rights;
• Jane must now give notice to each of John’s children that she wishes to offer John’s will for probate;
• The notice must be by service of process through the Court and follow the same formalities as bringing any other lawsuit where Joseph would be an adversary.
• If Joseph is not officially served with process and given an opportunity to object to the will being offered into probate, then Jane must try to convince him to sign an affidavit stating among other things that:
• He (Joseph) does not object to the will being offered for probate;
• An acknowledgment that John’s community property will pass to Joseph and in part to Jane if the will is not admitted to probate.  (This can be a huge task if Joseph decides to be litigious.)
• That Jane is not at fault for failing to file the will for probate within the four years required.

It does not take long looking at the above-recited fact scenario to realize that Jane’s delay in offering John’s will for probate can, and probably will, produce some unintended results.  At the very least, Jane will be unable to serve as executrix of John’s will and may even be in the position of sharing the property that she and John earned together with John’s child from his prior marriage.

Under laws of intestate succession, John’s one-half of their community property is at risk together with two-thirds of all his personal separate property and all of his separate real property.

As with most things in the law, time is extremely important.  Do not, however, consider all things lost if a loved one’s will was not timely offered for probate.  There can be factors which are not discussed herein that can alter the ultimate outcome.

The most important thing to consider if you are faced with a situation in which unexcused delay has resulted in an untimely filing is that you cannot know the exact extent of your situation until you have discussed it with an experienced attorney of your choice.  Do not consider the information in this article to be fatal to your position if you have allowed the four year time to pass, but be aware of the fact that time is very important.  Do not delay in determining your position before it worsens.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at , please see- www.houstontxprobate.com