San Antonio Express-News
May 29, 2007
Overcoming the Statute of
Limitations on Probate
copyright 2007, Paul Premack
|Dear Mr. Premack: My grandmother
and her second husband made Wills with an attorney. He died of cancer in
1997. She got Alzheimer’s and died the next year. They left everything
to my father but the attorney did not file either Will in court. My
father always cared for them both, and since they died he has rented
their house out to cover its taxes and upkeep. Apparently because
nothing was filed in court it is as though the Wills do not exist. Now
my father’s sister is demanding the house be sold and the money split
among all five siblings. Is there anything my father can do to make the
Wills stand? – DMB
Your grandparents’ attorney was only responsible for filing their Wills
for probate if he was hired and paid to do that task. In the Wills, they
would have named an Executor (perhaps your father) who is responsible
for locating and hiring an attorney to help with the legal process.
Another “interested party” (like an heir named in either Will) can also
initiate probate, but the process is then handed over to the Executor.
A Will must be filed for probate within four years after the date the
testator died. This statute of limitations has only one exception: if
the person applying for probate was not “in default” then the Will may
be offered to the court as a muniment of title. Default means failure to
use reasonable diligence. It may involve the amount of time that has
passed, lack of knowledge about the law, and discovery of new
For instance, in the case of Kamoos v Woodward, the Will was not offered
for probate by the surviving spouse until five years after her husband
died. She had the Will in her possession the whole time, but the only
assets that she knew about were the bank account and the home. During
the fifth year, she was informed that her husband had some mineral
rights, and she promptly filed the Will for probate. The court found
that she was not in default and allowed the will to be probated as a
muniment of title.
In your family’s situation, ten years and nine years respectively have
now passed. No new assets were suddenly located. Your father may have
misunderstood the law, or may have been told that probate was not
necessary; even so, he may have a difficult time proving to the court
that he is not in default.
Even if the court decides he is not in default, another law requires
that each of the intestate heirs receive notice the Will is being
offered for late probate. In your grandparents’ cases, the intestate
heirs certainly include all of their respective children. Those heirs
have the opportunity to appear in court, to contest the Will, and to
claim that there is default for not presenting the Will within the
four-year limit. Your aunt might do so to preserve her claim to the
If the Will cannot be probated, its terms are indeed ignored. In that
case, the laws of intestacy apply. Your step-grandfather’s share of the
community property (the house) would have passed to your grandmother –
unless he had any of his own children from a prior marriage. In that
case, his half of the community estate passed to his children in 1997.
Upon your grandmother’s death whatever part of the house she owned
passed via intestacy to her children. A review of the family tree would
be necessary to give the exact outcome from the general intestacy rules,
but your father would not end up as sole owner of the house. His
siblings have a strong legal position, and unless he can establish he
did not default in his failure to present the Wills for probate, he will
not get the entire house.
Prior Column: Who can File
Will for Probate?
Next Column: How
Does Probate Work? (Part 1)
Disclaimer: This column answers a specific
legal question asked by an individual in Texas. The answer may or may not
match your individual situation. Be careful not to treat this column as
specific legal advice, as it may not meet your individual needs. It may
give you a solid basis for discussion with your own attorney.
You should consult with your personal
attorney before you take any action on this or any legal issue.
Also, please be aware that laws change, so this column is valid only
as of the date it was published. This communication does not create an
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