Ferreira v. Butler, No. 17-0901, 2019 WL 1575592 (Tex. Apr. 12, 2019).

Estate Administration

Late Probate


Executrix of Decedent’s estate attempted to probate the will of Decedent’s Wife nine years after her death. Wife’s children from a previous relationship contested the application asserting that it was too late to probate Wife’s will as more than four years had elapsed since Wife’s death and that Decedent lacked a good reason for not timely probating his wife’s will. Executrix responded that the four year rule did not apply under Estates Code § 256.003 because she was not in default; she applied to probate the will a mere one month after discovering the will. The trial court denied probate and Executrix appealed. The intermediate appellate court affirmed in Ferreira v. Butler, 531 S.W.3d 337 (Tex. App.—Houston [14th Dist.] 2017). The court explained that Executrix’s timely conduct was irrelevant. The important issue is whether Decedent acted timely which he clearly did not. The court explained that Executrix, both in her personal capacity and in her representative capacity, could have no greater right than Decedent had when he died. The court did, however, recognize that there is a split in authority among the Texas appellate courts regarding whether a default by a will beneficiary is attributed to that beneficiary’s successors in interest (heirs or will beneficiaries).


On appeal to the Supreme Court of Texas, the court adopted Executrix’s position that the statute clearly references whether “the applicant” was in default, not whether someone else, even the person through whom the applicant is claiming, was in default. The court expressly overruled Faris v. Faris, 138 S.W.2d 830 (Tex. App.—Dallas 1940, writ ref’d), in which the court had imputed a devisee’s default to that person’s own devisee. However, the court did recognize that Executrix was “bound” by Decedent’s default in her capacity as Decedent’s executrix but she would have her own standing as an interested person because, as a devisee under Decedent’s will, she had a pecuniary interest that would be affected by the probate of Decedent’s Wife’s will which left property to Decedent. Accordingly, the court vacated the appellate court’s decision and remanded so Executrix could amend her pleadings to seek probate of Decedent’s Wife’s will in her individual capacity.


Moral:  The court may consider only the applicant’s default in determining whether to probate a will after four years.