Marshall v. Estate of Freeman, No. 03-20-00449-CV, 2022 WL 1273305 (Tex. App.—Austin Apr. 29, 2022, no pet. h.).

Estate Administration

Late Probate

The trial court admitted the testator’s will to probate as a muniment of title forty-one years after his death after finding that the applicant as not in default as Estates Code § 256.003 requires if the applicant files the application more than four years after the testator’s death.

The appellate court reversed holding that no evidence supported the trial court’s conclusion that the applicant was not in default. Evidence showed that the applicant discovered the existence of the testator’s will more than four years before filing the application to probate the will. Evidence also showed that an attorney told the applicant that the will needed to be probate over one year before the filing of the application. The court recognized that Texas courts are lenient in excusing the applicant’s delay in probating a will. However, in this case, the applicant knew he should probate the will but his excessive delay in filing the application meant that he actually was in default. The court also noted that the applicant waited seven months after an heir filed a determination of heirship action.

Moral:  Although Texas courts are lenient in finding that an applicant to probate a will was not in default it failing to file the will within four years after the testator’s death, the applicant still must act timely after discovering the will and learning that probate is necessary.