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 applicant attempted to probate the testator’s will as a muniment of title six years after the testator’s death. The heirs filed a small estate affidavit and argued that the applicant was in default under Estates Code § 256.003 and thus the application should be denied. The trial court agreed and the applicant appealed.

The appellate court affirmed holding that the applicant was in default in probating the will more than four years after the testator’s death. The court explained that the applicant had possession of the will within days of the testator’s death but took no action to probate the will until six years later. In addition, an attorney advised the applicant that probate was needed several months before the applicant filed the will. The court conducted an extensive analysis of Texas not-in-default cases and concluded that the trial court’s implied finding of default was “not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.” Id. at *7.

Moral:  An applicant who presents a will for probate after the testator has been dead for more than four years, should present a strong case of not being in default to the trial court because it will be difficult to have a finding of default set aside on appeal.