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Will a Court Accept “I Didn’t Know” as an Excuse for Not Complying with Probate Deadlines?

Probate is a court process that kicks in when someone dies. As this case shows, if you are a potential executor of a will and don’t file for probate within the allotted time, you might not get a second chance.


Holographic Will:

A holographic will is a will that is entirely handwritten and signed by the testator. In Texas, a holographic will must be: (1) entirely in the handwriting of the testator, (2) signed by the testator, and (3) dated.

Texas law on wills and probate:

Texas law generally requires that a will be submitted for probate within four years of the testator’s death (Section 256.003(a), Texas Estates Code).

Default Inquiry:

To be in default means to fail to probate a will because of the absence of reasonable diligence by the party offering the instrument.

Small Estate Affidavit:

A small estate affidavit allows the heirs of an estate to take immediate possession of an estate without going through probate.

Probate Case

Matter of Estate of Masters, (Tex. App.—El Paso July 20, 2022, no pet. h.)

Facts & Procedural History

Robert Scott Masters (Testator) resided with Kippy Bailey (Appellant) as domestic partners in their home in San Angelo, Texas. The house deed listed Testator as the sole owner, but in 2007, Testator executed a holographic will that gave the house to Appellant. The day after Testator passed away in 2012, Appellant discovered the holographic will and kept it until he filed it for probate six years later. Prior to attempting to probate the will, Appellant distributed specific personal property items to the individuals named in the will (including Testator’s mother, Appellee Laura Ann Masters). Appellant continued to reside at the house, paid property taxes, performed maintenance, and paid utility bills in the years after Testator’s death. Sometime in 2018, Appellant had the language “c/o Kippy Bailey” added to the tax records associated with the house, which still listed Testator as the sole owner. In 2018, Appellant realized that he didn’t have legal title to the house after attempting to have a contractor complete work on the house. After obtaining an attorney, Appellant learned that he needed to admit the will to probate to transfer title to the house to his name.

Appellant filed an application to probate the holographic will as a muniment of title. Testator’s potential heirs, Laura Ann Masters, Laura Kit Martin, Steven Kimble Masters, and Walter Kit Masters (collectively, Appellees), responded by filing an original answer and small-estate affidavit, arguing that they were the correct beneficiaries under Texas intestacy law. They also stated that Appellant had not met the statute of limitations because Appellant had not filed the application within four years of Testator’s death. After Appellant conceded he had not met the statute of limitations, the trial court considered whether he had proved he was not “in default,” which would allow him to file the will after the deadline. Appellant stated that he was not aware of the statute of limitations, and had assumed the title for the house automatically transferred to him after Testator’s death. However, Appellees provided evidence showing that Appellant had experience with real estate deeds previously. The trial court denied Appellant’s application and approved Appellees’ small-estate affidavit.

The Court of Appeals affirmed the rulings of the trial court, holding that: (1) the evidence showed that Appellant defaulted under the statute; and (2) Appellant lacked the standing required to challenge the validity of Appellee’s small-estate affidavit. The Court of Appeals stated that sufficient evidence existed to show that Appellant was in default and did not have extenuating circumstances. To explain further, Appellant had exclusive control over the will and had knowledge of how land titles operate. For the small-estate affidavit, Appellant failed to offer legal support for why the Court should have set aside the trial court’s orders. In addition, since Appellant was in default, he lacked standing to challenge the affidavit (he lacked an interest in the estate).

Main Considerations

What does a “default” inquiry review?

This procedure asks whether the proponent of will could show a valid excuse for the late application for probate, allowing them to probate the will after the deadline.

Can lack of knowledge serve as a defense for probating a will within a person’s custody?

No, a person who maintains custody of a will is responsible for being aware of the statutory requirements associated with it, regardless of their actual knowledge. Ignorance of the law is no excuse for failure to comply with the statute. Texas case law, however, liberally permits a will to be offered as a muniment of title after the four-year limitation period has expired. Some courts have found that a will proponent’s belief that probate was unnecessary, along with additional circumstances, may be an adequate excuse to avoid a finding of default.

The Takeaway: Order admitting a will to probate

Matter of Estate of Masters shows that a proponent of a will seeking admission of the will after the statute of limitations has passed must provide sufficient evidence for a lack of knowledge of why/how/when the will needed to be probated. If a proponent has a requisite knowledge of land titles, merely stating that they were unaware of the deadline will likely not suffice.

Do you need to hire an Experienced Probate Attorney when a loved one dies with or without a will?

No one wants to think about what will happen to their loved ones after they die, but it is important to have a plan in place in case the unthinkable happens. If your loved one dies without a will, or with a will that is not properly executed, their estate will need to go through probate. Probate is the legal process of distributing a person’s assets after they die.

If you are named as the executor of your loved one’s estate, you will be responsible for ensuring that the estate is properly probated. This includes filing the necessary paperwork with the court and meeting all deadlines. Missing a deadline can have serious consequences for the estate, so it is important to have an experienced probate attorney on your side to help you navigate the process. Call us today for a FREE attorney consultation. (281) 219-9090.

How do I skip probate in Texas?

There are a few ways that you can avoid probate in Texas. One way is to have a small estate affidavit. This is a document that is filed with the court that states that the value of your estate is less than a certain amount. Another way to avoid probate is to create a living trust. This is a document that states how you want your assets to be distributed after you die.

Is there a time limit for probate in Texas?

The short answer is “YES,” and missing a deadline can have serious consequences. The court may impose penalties or even dismiss the case entirely. It’s important to understand the deadlines involved in probate and to work with an experienced attorney to make sure they’re met.

What happens if I don’t apply for probate?

If you don’t apply for probate, the court will appoint an administrator to handle the estate. The administrator will have to follow all of the same rules and deadlines that you would have as the executor. So, if you’re thinking about avoiding probate by not applying, think again!

What happens if you don’t probate a will?

If you don’t probate a will, the estate will usually go through intestate succession, which means that the assets will be distributed according to state law. This could mean that the assets will go to relatives that the decedent didn’t intend to benefit, or that the estate will be left without a clear heir. In some cases, probate may still be necessary even if there is a will, in order to clear up any questions about the decedent’s wishes or the rightful heirs to the estate.

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