In re Estate of Campbell, 343 S.W.3d 899 (Tex. App.—Amarillo 2011, no pet.).

Estate Administration

Late Probate


Testator died in 2002 with a will leaving his entire estate to his wife. Wife died in October 2008. While rummaging through a lock box in Wife’s office in December 2008, Proponent (Wife’s son, Testator’s step-son) discovered Testator’s will along with his mother’s will. Shortly thereafter, Proponent filed an application to probate Testator’s will alleging that he was not in default under Probate Code § 73 for filing his application more than four years after Testator’s death because he was unaware that Testator had executed a will. The court admitted Testator's will to probate and Testator’s Daughter appealed.

The appellate court affirmed. The court explained that Proponent was not in default and thus the late probate was excused. The fact that Wife was likely in default in not timely probating Testator’s will is irrelevant as the statute only requires the proponent to be not in default. As stated by the court, “the default of another does not preclude a non-defaulting applicant from offering a will for probate.”

Moral: Late probate is available when the proponent is not in default even if other beneficiaries to the will may have been in default.