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Discovery of Uncle’s Will Years Late Raises Question

Dear Mr. Premack: I just discovered my uncle’s will. He died in 2006. I have been told that the probate period has passed. He willed his 40 acres of land to me, not to his son. Is there anything else that can be done since the probate period is already passed? – KMA

Under the Texas Probate Code, a Will must be filed for probate within four years after the date of the testator’s death. The same law will continue to hold after the Probate Code is repealed on January 1 and is replaced by the new Texas Estates Code.

This requirement that a Will be offered for probate within four years 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 or discovery of new information.

For instance, in the case of Kamoos v Woodward, the Will was not offered for probate by the surviving wife 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 situation, the existence of the Will was unknown. It could not have been offered for probate if no one alive knew it existed during the first four years, so it is likely a Judge would find you are not in default for failing to present the Will within the four year limit.

You have, however, one more giant hurdle before the Will can be admitted to probate. Another provision in the Texas Probate Code (section 128B, which will become section 258.051 of the Texas Estates Code on January first) requires that each of the intestate heirs receive notice the Will is being offered for late probate. In your uncle’s situation, the intestate heirs certainly include his son (in fact, all of his children if he has more than just one son). Those heirs have the opportunity to appear in court to object to the Will, to claim that there is default, or to prove that the Will is otherwise ineligible for probate (for instance, that it is a fake, a fraud or a forgery).

The Judge must balance the opposing rights of the heirs at law versus the devisee under the Will to decide who will be treated as owner of the 40 acres. It may be worth the effort to offer the Will for probate as a Muniment of Title since the asset involved is worth a lot of money, but there is no guarantee it will be accepted. Further, you must realize that this will cause a conflict with your cousin (the heir at law) which could seriously damage your relationship.

If you decide to proceed and if the court finds that the Will is authentic and that you were not in default, and issues an order admitting the Will to probate as a Muniment of Title, then the Will and Order act as a transfer of title for the 40 acres into your name. If the court rules that the Will cannot be probated then its terms are ignored, the laws of intestacy continue to apply, and the property stays with your cousin.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, December 16, 2013.


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