Is it possible to Probate a Will After Four Years?

Section 256.003 provides that "a will may not be admitted to probate after the fourth anniversary of the testator's death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator's death." This four-year time frame is referred to in the Texas Estates Code as the "period for probate."

Yet, it is not uncommon for an heir of the Estate, particularly a surviving spouse, to believe that there is no necessity to probate the testator's will. Years pass and only when the surviving spouse attempts to sell the marital home does he or she learn that the house does not pass to the spouse without probating the will. By this time, however, over four years has elapsed since the death of the testator. What is the legal effect of failing to probate the will? Can the will be admitted to probate after four years? What are the requirements to probate a will after four years?

If a will is not probated within the four-year statute of limitations period, the legal effect is that the title company will presume that the testator died intestate. Thus, the persons who inherit the estate would be the testator's heirs at law, i.e., those heirs who take under the state's applicable intestacy provisions. Often the heirs at law are the same persons that inherit under the will. In such instance, the heirs can complete affidavits of heirship to sell the property.

What if the heirs at law and the devisees in the will are different? In such instance, the devisees in the will may want to seek the admission of the will to probate after four years. But what about the intestate heirs who stand to lose if the will is admitted to probate?

The Constitution of the United States provides that a person cannot be deprived of life, liberty, or property without due process of law. Thus, before a Court can admit a will into probate, which would deprive the intestate heirs of property (their presumed inheritance), the intestate heirs must receive due process. Due process usually means advance notice of the taking and an opportunity to be heard.

The Texas Estates Code and the probate courts recognize this principle. Before the Court will admit a will into probate after four years, the Courts require that you describe the decedent's marital and family history so that the Court can determine the identity of the intestate heirs. The Courts also require that you list the names, addresses, and interests in the estate of each intestate heir. Finally, you must state why the applicant to probate the will is "not in default" for not probating the will within four years.

Upon receipt of such application, most Courts will appoint a second attorney called an "attorney ad litem" whose job it is to verify that all of the intestate heirs of the estate have been properly identified. Dallas County, Denton County, and Tarrant County often appoint an attorney ad litem when probating a will after four years. Collin County will only do so on a case-by-case basis. Since the ad litems do not work for free, the person who is attempting to probate a will after four years must pay a deposit of $600 and later the remainder of the fee once the case is complete. But wait, there is more.

Section 258.051 of the Texas Estates Code requires that the intestate heirs must each be served with a citation from the Court informing him or her that an application has been filed to probate the will after four years. The citation must be personally served to the intestate heir by a sheriff, constable, or process server. Alternatively, and most often, the intestate heir can sign a document wherein the heir informs the Court that the heir is aware of the attempt to probate a copy of the will, that the heir understands that the property would pass to the intestate heirs in the absence of the will, and that the heir agrees that the copy of the will should be admitted to probate. This document, called a waiver of citation, must be executed before a notary public.

Easy way to Probate a Will After Four Years. Sometimes probating a will after four years is almost as easy as probating the will within the statute of limitations. The client provides the Duran Firm a complete marital and family history for the decedent. The Duran Firm prepares the waiver of citation for its clients for free. The client then gets each intestate heir to sign the waiver before a notary. The documents are then filed with the Court. The client arranges for two disinterested witnesses to attend the hearing and provide testimony as to the decedent's marital and family history. If the Court is satisfied that all of the decedent's intestate heirs have been served with notice (or waived notice), the Court may admit the will into probate after the four-year period. Though not required, the Court will most often a will into probate when all of the intestate heirs would receive the exact same inheritance with or without a will and everyone is in agreement with probating the Will after four years.

Hard Way to Probate a Will After Four Years. Probating a will after four years can also be very difficult. There are cases where the client does not know the decedent's complete marital and family history. Furthermore, the Court is reluctant to admit a will into probate after four years when: 1) an intestate heir refuses to consent to the admission of the will into probate or actively opposes it; 2) when an intestate heir who would "lose" under the will is a minor or an incapacitated person; 3) when an intestate heir cannot be identified or located. As an additional safeguard, the Court may appoint a second attorney ad litem for the missing, unidentified, minor or incapacitated heir. Thus, it is important to locate and serve all of the intestate heirs in order to avoid paying an attorney to fight you in court.

The Duran Firm also has different policies when probating a will after four years. If your case is similar to the "easy" probate described two paragraphs above, then the Duran Firm can probate the will for an additional fixed fee of $500. If your case is similar to the "hard" probate described in the preceding paragraph, then the Duran Firm will charge you on an hourly fee basis. Furthermore, the Court will often appoint an Attorney Ad Litem to confirm the marital and family history. The Court will require a deposit of $600 for the Attorney Ad Litem. For more information on rates, see the foregoing page for the Duran Firm's Billing Procedures and Rates for Hourly Fee Cases

Thus, it is possible to probate a will after the four-year period for probate. The circumstances of your case will dictate whether it is likely that the Court will admit the will into probate or proceed to determine the intestate heirs. Please call me to discuss your case in detail to determine what you are up against.