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Time for Probating an Intestate Estate in Texas

There is a four-year rule for probating a will. But this rule only applies to probating a will. It does not apply when there is no will.

There are special rules that are involved when a Texas resident dies without a will. One set of rules involves heirship proceedings. This is a legal term that refers to the process of identifying who is entitled to inherit from someone who died without a will.

Heirship proceedings are often filed several years after the decedent died. Can they be filed more than four years after death? The court addresses this in Estate of Ripley, 04-18-00968-CV (Tex. App.–4th Dist. 2019).

Facts & Procedural History

This case involves a probate dispute between three siblings over their mother’s estate. The mother died in 2008 at an advanced age.

An heirship proceeding was started for the mother’s estate in 2018 by two of the siblings. The two siblings apparently could not locate disinterested witnesses who knew their mother, as their mother would have been over 100 years old at the time of the heirship hearing. Instead of witnesses, they offered an expert report from a forensic genealogist.

The third sibling contested the heirship application. His probate attorneys argued that the time for filing the heirship application had passed. The probate court granted the application and declared the three children to be their mother’s heirs. The third child appealed the probate court’s decision.

About Heirship Proceedings

The heirship proceeding is used to create a record of the family relationships. It is used when someone dies intestate or without a will.

These proceedings are important as they establish who is entitled to inherit the decedent’s property. Texas’ intestacy laws spell out who gets the decedent’s property.

The heirship proceeding is a court proceeding. It includes a hearing with the probate court. It is similar to the affidavit of heirship, which is handled outside of court.

The Estates Code sets out a list of persons who can start the heirship proceeding. It goes on to set out the rules for starting the heirship proceeding. This includes filing an application and putting on certain evidence in court.

The Time for Filing an Heirship Proceeding According to the Code

The Texas Estates Code says that an heirship proceeding can be started any time after the decedent’s death. It goes on to say that:

Notwithstanding Section 16.051, Civil Practice and Remedies Code, a proceeding to declare heirship of a decedent may be brought at any time after the decedent’s death.

Section 16.051 that is referenced refers to the general four-year statute of limitations for bringing a lawsuit. It reads as follows:

Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.

These statutes seem to say that there is no time limit for the heirship proceeding. But the courts haven’t followed this reading of the statutes.

The Courts Take on the Time for an Heirship Proceeding

As noted in the Ripley case, the Texas Supreme Court has concluded in prior court cases that some heirship proceedings have to be started within four years of the decedent’s death. The court in Ripley summarizes the court-created rule as follows:

When an heirship claim is brought after an administration of the decedent’s estate or a conveyance of the decedent’s property to a third party, courts have applied the four-year residual limitations period of Texas Civil Practice and Remedies Code Section 16.051. 

The appeals court that heard the probate dispute in Ripley followed this holding. It concluded that there is no time limit for starting an heirship proceeding as long as there wasn’t a prior probate for the decedent’s estate and there was no transfer of the decedent’s real estate to a third party.

Because there was no evidence for either of these factors, the appeals court concluded that the heirship determination was correct.

The Takeaway

This court case helps clarify when heirship is time-barred. The general rule is that there is no time limit for judicial heirship. The courts can hear and grant these at any time. However, if there was a probate for the estate, then the four-year limitation applies.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with heirship determinations. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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