In re Estate of Rogers, 322 S.W.3d 361 (Tex. App.—El Paso 2010, no pet.).
The trial court found that Decedent died intestate, determined heirs,
and appointed Independent Administrators in 2006. In 2009, Friends
attempted to set aside these orders and probate Decedent’s will.
Independent Administrators claimed that it was too late to challenge the
orders as both the time to appeal and file a bill of review under
Probate Code § 31 (two years from date of judgment) had elapsed. Friends
claimed that they were within the four year period to probate a will
under Probate Code § 73. The trial court granted summary judgment in
favor of Independent Administrators and Friends appealed.
The appellate court affirmed. The court recognized that normally a will
proponent has four years from the date of the testator’s death to
probate the will. However, Probate Code § 73 does not address the
situation where the court has already entered a final judgment that the
decedent died intestate. Friends had the options of appealing the trial
court’s judgment or filing a bill of review. Because Friends did neither
in a timely manner, they are barred from setting aside the judgment.
Moral: A person dissatisfied with a determination of heirship should
timely appeal or file a bill of review.