In re Estate of Allen, 407 S.W.3d 335 (Tex. App.—Eastland 2013, no pet.).


Estate Administration

Statute of Limitations 


Wife filed Husband’s will for probate as a muniment of title more than four years after his death.  The will left his entire estate to his wife of over 56 years.  The trial court admitted the will to probate under Probate Code § 73(a) after finding that Wife was not in default in failing to probate the will within the four year period.  Son appealed.


The appellate court affirmed.  The court reviewed the facts which showed that Wife had consulted an attorney shortly after her husband’s death.  The attorney told her she had the option of probating the will as a muniment of title or executing an affidavit of heirship and that regardless of which option she selected, she would receive the entire estate.  Because Wife wanted the estate handled quickly and inexpensively, she opted for the affidavit of heirship.


When Wife and Son had a dispute over keeping livestock on certain real property, Wife consulted a different attorney.  This attorney discovered that Husband owned hundreds of acres of land as his separate property in which his children would have a substantial interest under intestacy (e.g., two-thirds outright plus a life estate in Wife’s life estate in the other one-third of the property).  Within a month of learning of her children’s interest in the property under the affidavit of heirship, Wife filed the will for probate.


The court reviewed the evidence and found that it was sufficient to support the trial court’s finding that Wife was not in default.  She relied on the advice of an attorney in not probating the will in a timely manner.  She had no legal training and had no reason to distrust her attorney when he asserted that she would receive all of Husband’s property under an affidavit of heirship.  Once she realized that her first attorney had given her bad advice, she promptly filed the will for probate.


Moral:  Texas courts are “quite liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon the showing of an excuse by the proponent for failure to offer the will earlier.”  Id. at *4.  Also, if a decedent dies with a will, it is better practice to probate that will rather than to use a technique designed for an intestate death such as an affidavit of heirship.