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“I Didn’t Know” Defense for Not Complying with Probate Deadlines

When someone dies with a will, it may not always be self-evident that the will has to be admitted to probate.

This is often the case in estates where all of the assets pass to a surviving spouse. The surviving spouse may assume that they automatically succeed to title to all assets. And they may if the property is community property.

This raises the question of what happens if a potential executor of a will does not file for probate within the allotted time. The Matter of Estate of Masters, (Tex. App.—El Paso 2022, no pet. h.) case addresses this question.

Facts & Procedural History

Robert Scott Masters (“Testator”) and Kippy Bailey (the “Appellant”) lived together as domestic partners in San Angelo, Texas. Although the house deed listed Testator as the sole owner, Testator executed a holographic will in 2007 that bequeathed the house to the Appellant.

Testator passed away in 2012, and the Appellant discovered the holographic will the following day, but did not file it for probate until six years later. Before filing for probate, the Appellant distributed specific personal property items to the beneficiaries named in the will, including Testator’s mother, Laura Ann Masters (the “Appellee”).

The Appellant continued to live in the house, paid property taxes, conducted maintenance, and paid utility bills in the years following Testator’s death. In 2018, the Appellant tried to have work done on the house, but learned that he did not have legal title to the property.

After seeking legal advice, the Appellant filed an application to probate the holographic will as a muniment of title. The Appellees, who are potential heirs of Testator, responded by filing an original answer and small-estate affidavit. They argued that they were the rightful beneficiaries under Texas intestacy law and that the Appellant had not met the statute of limitations because he had not filed the application within four years of Testator’s death.

Ultimately, the trial court denied the Appellant’s application and approved the Appellees’ small-estate affidavit.

Time for Probating a Will in Texas

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

The courts have been somewhat lenient in not strictly enforcing this provision. Courts that have considered this issue have generally excused a late-probated will if there is evidence that the party did not know that the will had to be probated within four years.

In this case, although the Appellant acknowledged that he had missed the statute of limitations, he argued that he was not “in default” because he was unaware of the deadline and believed that the title to the house had automatically transferred to him upon Testator’s death. However, the Appellees provided evidence showing that the Appellant had prior experience with real estate deeds.

The probate court and appellate court noted that the evidence showed that the Appellant was aware of the need to probate the will to obtain title to the real estate.

What Does the Proponent of a Late-Filed Will Have to Show?

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

A lack of knowledge of the filing deadline generally cannot serve as a defense for probating a will within a person’s custody. 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.

But as noted above, 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.

What Happens if the Court Does Not Admit the Will?

If the will is not probated and the court will not admit the will as a muniment of title, the estate will usually go through intestate succession. This 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.

The Takeaway

This case 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 the requisite knowledge of land titles, merely stating that they were unaware of the deadline will likely not suffice.

Hire an Experienced Probate Attorney

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.

If you need help with your Texas probate matter, call us today for a FREE attorney consultation at (281) 219-9090.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with late-filed probates. 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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