San Antonio Express-News
May 29, 2007
Overcoming the Statute of
Limitations on Probate
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 information.
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
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 property.
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
attorney-client relationship between the author and the reader.
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