Byerley v. McCulley, 514 S.W.3d 426 (Tex. App.—Tyler 2017, no pet.).

Estate Administration

Late Probate


The probate court admitted Testatrix’s will to probate nineteen years after her death. The court determined that Applicant was not in default for probating the will within four years of the date of Testatrix’s death and that service was made by posting. Heir sought a bill of review asserting that he did not receive sufficient notice.


The appellate court agreed and granted the bill of review. Applicant claimed that under the law at the time of Testatrix’s death, service for a late probate by posting was sufficient. Prob. Code § 128(a). Heir asserts that the law applicable when Applicant filed the will for probate governs which requires service on heirs whose addresses can be ascertained with reasonable diligence. Est. Code § 258.001.


The court recognized that when the law was changed to require service in 1999, the legislation contained a savings clause providing that the change to require service on the heirs upon a late probate applied only if the person died on or after September 1, 1999. Prob. Code § 128B. However, when Probate Code § 128B was repealed and replaced by Estates Code § 258.001, there was no express savings clause. Because there was no savings clause and the text of § 258.001 does not limit the applicability of the notice requirements, notice to the heirs was required. Accordingly, admitting the will to probate after only notice by posting was a substantial error justifying the issuance of a bill of review.


Moral:  Applicants for a late probate need to provide notice to the heirs regardless of when the testator died.