Orr v. Walker, 438 S.W.3d 766 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

Estate Administration

Late Probate

Proponent in Default


Testatrix died in 1992 and her will was not probated.  In 2006, one of Testatrix’s daughters (Marguerite) died and her executrix (her daughter, Charlotte) found Testatrix’s will, told her sister (Mary) about it, and gave a copy to her uncle (Kenneth) in 2007.  After Kenneth died, Mary filed an application to probate Testatrix’s will in 2012.  Kenneth’s wife (Lucy) opposed the application claiming that Mary was in default for not timely probating Testatrix’s will.  The trial court agreed and Mary appealed.


The appellate court affirmed.  The court began its analysis by explaining that Mary had the burden of showing she was not in default in failing to present Testatrix’s will for probate within four years of her death under Probate Code § 73 [recodified as Estates Code § 256.003].  Lucy claimed that Marguerite’s failure to probate the will should be imputed to Mary.  The court explained that there is a split of authority between the courts of appeal regarding whether an heir’s default passes on to the heir’s successors in interest.  However, the court did not reach this issue holding that the evidence was sufficient to show that Mary herself was in default by her own inaction to probate Testatrix’s will.


Mary had knowledge of the will back in 2006 which is more than four years before she attempted to probate the will.  The court explained that “to maintain the status of non-defaulting, Mary . . . had to take reasonable actions to timely file the application after the date of discovery.”  Id. at 769.  Thus, by waiting more than four years, Mary lost her status as being not in default even assuming Marguerite’s default is not imputed to her.


Moral:  Once a “stale” will is discovered, a person who wishes to probate that will should do so in a timely manner.