Estate Administration

Late Probate

In re Estate of Williams, 111 S.W.3d 259 (Tex. App.—Texarkana 2003, pet. denied).


Testator died in 1980. However, it was not until 1998 that one of the beneficiaries attempted to probate the will as a muniment of title. Beneficiary asserted that he was not “in default” under Probate Code § 73(a) for waiting more than four years after the testator’s death and thus was entitled to a late probate. He asserted that he was unaware of the will’s existence until 1998 and then acted promptly to offer the will for probate. Evidence showed, however, that Beneficiary always knew about the will and even had custody of the will until 1992. Nonetheless, the trial court admitted the will to probate.

The appellate court reversed. The court held that Beneficiary was in default because he knew about the will and had kept it in his safety deposit box. The court also held that the potential “not in default” status of other will beneficiaries was irrelevant because these beneficiaries did not apply to probate the will even though they knew Beneficiary was attempting to do so.

Query: Could the other beneficiaries now attempt to probate the will and allege that they were not in default because they did not know about the will until 1998 and that they exercised due diligence when they relied on Beneficiary’s late probate?

Moral: If a beneficiary discovers the existence of a will more than four years after the testator’s death, that beneficiary should attempt to probate the will and claim that he or she was not in default. The beneficiary should not rely on someone else to probate the will who may be found to be in default.