Finding a parent’s will tucked away in an old suitcase years after their death seems like a stroke of luck. The document provides clear instructions about property distribution and identifies beneficiaries. Family members might assume they can simply file the will with the court and proceed according to its terms. After all, better late than never when it comes to honoring a deceased loved one’s wishes.
Texas law imposes strict time limits on probating wills. Generally, a will must be offered for probate within four years of the testator’s death. This deadline exists whether family members know about the will or not. However, the law recognizes that sometimes people don’t learn about a will’s existence until years have passed. The question for late-found-will is, once you discover a will that’s been sitting unfiled for decades, how quickly must you act to avoid being “in default” under Texas probate law?
The answer matters for families trying to settle estates long after a death occurred. Waiting too long after discovering a will—even when the initial delay was excusable—can doom the probate application. A recent Texas appeals court decision provides guidance on what “reasonable diligence” means when someone discovers an old will and learns they need to file it. Marshall v. Estate of Freeman, No. 03-20-00449-CV, 2022 WL 1503893 (Tex. App.—Austin Apr. 29, 2022, no pet.) (mem. op.), offers an opportunity to examine how courts evaluate whether an applicant acted promptly enough after learning about the need to probate a will.
Facts & Procedural History
Jupitor died in Bell County, Texas on November 25, 1977. He had executed a will on April 24, 1972, leaving his 20-acre farm to his six biological sons from his first marriage: J.T., Leroy, Harriel, Hobert, Obie, and Alvin Freeman. The will did not mention Jupitor’s second wife, Lena Mae Marshall, or her two children, Horace and Cheryl. Jupitor had married Lena Mae in 1963 and lived with her and her children until their divorce in October 1977, just a month before his death.
After Jupitor died, no one filed his will for probate administration. The Freeman brothers continued managing the family property informally. In 2001, J.T. Freeman, acting as “independent executor” of Jupitor’s estate—despite no will having been probated—executed a deed conveying part of the land to a church. The deed stated that the law firm preparing it had not examined title and did not guarantee that good and marketable title was being conveyed. The church eventually returned the property to the family.
Hobert Freeman, one of Jupitor’s biological sons, handled various matters related to the property over the years. Around 2014, he authorized placing a manhole on the property for a city sewer easement. He testified that he did not know about his father’s estate plan or will at that time. According to Hobert’s testimony, he learned about the will four or five years before a February 2020 hearing, which would place the discovery sometime between 2015 and 2016. His niece had found the will in a suitcase or locker at one of his brother’s houses.
Several years after discovering the will, the Texas Highway Department paid the Freeman brothers $1,000 related to Hobert’s request for the department to build access to the property. Hobert consulted with attorney Jerry Secrest about the highway department matter approximately eighteen months before the February 2020 hearing—placing that consultation around August 2018. According to Hobert’s testimony, Secrest told him the will “need[s] to be probated.”
In October 2018, the surviving Freeman brothers and descendants of deceased Freeman brothers signed an agreement to sell the 19.3-acre farm to Robert Gaines. The agreement allowed J.T. and his wife to continue living in a residence on the property. Horace and Cheryl Marshall were not included in this agreement.
On January 7, 2019, Horace Marshall filed an application to determine heirship and for partition of the 19.36-acre tract. Marshall’s application stated that Jupitor died intestate—without a will. On August 5, 2019, Hobert Freeman filed an application to probate Jupitor’s will as a muniment of title.
The trial court admitted the will to probate as a muniment of title despite the 41-year delay since Jupitor’s death. The court explained its reasoning in a memo to the file, noting that Hobert and the other heirs lacked education and understanding of the legal system. The court found they had not lacked due diligence in having the will probated. Horace Marshall appealed, arguing that the trial court erred in admitting a will to probate more than four decades after the testator’s death.
What Does Texas Law Say About Probating Wills After Four Years?
Section 256.003(a) of the Texas Estates Code establishes the general rule for late probate of wills. A will may not be admitted to probate after the fourth anniversary of the testator’s death unless the applicant proves they “were not in default” in failing to present the will for probate within that four-year period.
This statutory framework serves important purposes. The four-year deadline promotes finality in estate matters. Family members and creditors need to know whether property will pass according to a will or through intestacy laws. Title to real estate needs to be clear. Allowing wills to be probated decades after death creates uncertainty about property ownership and can disrupt settled expectations.
However, the legislature recognized that rigid application of the four-year rule would produce unfair results in some cases. Someone might not know a will existed during those four years. A will might be lost and found years later. Family circumstances might make immediate probate seem unnecessary. The “not in default” exception allows courts to admit wills to probate after four years when the delay was excusable.
The burden falls on the applicant to prove they were not in default. This makes sense because the applicant is asking the court to make an exception to the general four-year rule. The applicant must present evidence showing their failure to probate the will earlier was reasonable under the circumstances.
What Does “Default” Mean in Texas Probate Law?
Texas courts have defined “default” as failure to probate a will due to the absence of reasonable diligence by the party offering the instrument. The key inquiry focuses on whether the applicant acted with reasonable diligence. Mere delay is not enough to establish default—the question is whether the delay resulted from lack of reasonable effort.
This definition requires examining what the applicant knew and when they knew it. Someone who didn’t know a will existed cannot be in default for failing to probate it during that period of ignorance. But once the person learns about the will, the duty to act with reasonable diligence begins. From that point forward, the applicant must take appropriate steps to probate the will within a reasonable time.
Texas law charges a person having custody of a will with knowledge that it must be filed for probate within the statutory period. Ignorance of the law does not excuse failure to comply with the statute. Someone who holds a will and refrains from presenting it for probate for personal considerations or under the assumption that probate is unnecessary is in default.
These principles create a tension. Courts recognize that not everyone understands legal requirements or has legal sophistication. Yet the law cannot excuse indefinite delay simply because someone lacks education or experience with probate matters. The question becomes: where does the line fall between reasonable and unreasonable delay?
How Liberal Are Texas Courts in Allowing Late Probate?
Texas appellate courts have repeatedly stated that they take a liberal approach to admitting wills to probate after the four-year limitation period expires. Courts look for any excuse that would explain the failure to offer the will sooner. This liberal tendency dates back nearly a century to cases emphasizing the importance of honoring testators’ wishes when possible.
The liberal approach reflects several policy considerations. First, probating a will generally gives effect to the deceased person’s expressed wishes. Refusing to probate a will because of technicalities means the property passes through intestacy—potentially to people the testator deliberately chose not to benefit. Second, many Texans lack legal sophistication and don’t understand probate requirements. Strictly enforcing deadlines against people who made honest mistakes seems harsh. Third, late probate often harms no one if the will simply confirms what everyone expected anyway.
However, “liberal” does not mean unlimited. Courts still require evidence showing the applicant was not in default. The applicant must present some explanation for the delay beyond simply saying they didn’t get around to it. The explanation must demonstrate reasonable diligence or circumstances that excused the lack of action.
What Factors Support Finding No Default?
Texas courts have identified several situations where late probate applications succeed despite substantial delays. These cases illustrate what “reasonable diligence” can look like in practice.
One common scenario involves applicants who didn’t know about the will’s existence. Generally, an applicant would not be in default if they didn’t know there was a will, provided they were not negligent in failing to discover it. Someone cannot be expected to probate a will they don’t know exists. The duty to act diligently begins when the person learns about the will.
Another recurring pattern involves applicants who believed probate was unnecessary. Courts have found no default when someone thought they already owned all the property or assumed no formal probate proceeding was needed. This belief must be genuine and reasonable. Courts are more sympathetic when the belief arose from advice received from others or from circumstances suggesting probate wasn’t required.
Lack of financial resources to hire an attorney can also support a finding of no default. Someone of limited means who cannot afford legal fees has an excuse for not immediately pursuing probate. However, this excuse has limits—the person must still act once they obtain resources or learn that probate is necessary.
Prompt action after learning of the need to probate weighs heavily in favor of the applicant. Multiple cases emphasize that applicants who “immediately” or “promptly” filed for probate after learning it was necessary succeeded in their applications. In Kamoos v. Woodward, 570 S.W.2d 6, 9 (Tex. App.—San Antonio 1978, writ ref’d n.r.e.), an applicant learned from an oil company about an outstanding royalty interest and the need to probate five years after her husband’s death. She immediately went to an attorney and offered the will for probate. The court found no default.
Similarly, in Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no writ), an applicant did not probate his wife’s will for thirteen years because he believed he had inherited everything. Upon learning there might be title problems, he immediately offered the will for probate. The court found this evidence raised a fact question about default and reversed summary judgment against him.
The word “immediately” or “promptly” appears repeatedly in cases finding no default. This suggests courts expect applicants to act quickly once they learn probate is necessary. The liberal approach to late probate extends to excusing initial ignorance or reasonable mistakes, but it does not extend to excusing continued delay after the applicant knows what needs to be done.
When Did Hobert’s Duty to Act Begin?
The duty to act with reasonable diligence began when Hobert learned about the will’s existence. According to his testimony, this occurred four or five years before the February 2020 hearing—sometime in 2015 or 2016. From that point forward, Hobert was charged with knowledge that the will existed and needed to be probated.
However, learning about the will’s existence didn’t necessarily mean Hobert immediately understood he needed to file it for probate. Many people lack familiarity with probate requirements and might not realize that a will sitting in a suitcase has no legal effect until it goes through a court process. Courts recognize this gap between knowing a will exists and understanding what to do about it.
The moment when Hobert’s duty to act crystallized came in August 2018—eighteen months before the February 2020 hearing. That’s when Hobert consulted attorney Jerry Secrest about the Texas Highway Department matter. According to Hobert’s testimony, Secrest told him the will “need[s] to be probated.” At that moment, Hobert had both knowledge of the will’s existence and explicit advice from a lawyer that he needed to probate it.
From August 2018 forward, Hobert had no excuse for further delay. He knew about the will. He knew it needed to be probated. A lawyer had told him exactly what needed to happen. The question was whether Hobert acted with reasonable diligence after receiving this information.
How Did the Court Analyze Hobert’s Actions After August 2018?
The Court of Appeals examined whether any evidence supported the trial court’s conclusion that Hobert was not in default when he applied to probate the will. The court acknowledged that Hobert’s failure to know about the will for forty years was excusable. The court also noted that Hobert had an eleventh-grade education, no experience acting as executor of a will, and limited legal sophistication.
However, the court found these factors insufficient to excuse the year-long delay after attorney Secrest told Hobert the will needed to be probated. The court emphasized that lack of higher education and legal sophistication cannot excuse indefinite delay once a lawyer provides explicit advice about what needs to be done. Ignorance of the law might excuse failure to act before receiving legal advice, but it cannot excuse failure to follow clear instructions from an attorney.
The court distinguished Freeman from cases where late probate was allowed. In Kamoos, the applicant went “immediately” to an attorney after learning of the need to probate and filed the will. In Chovanec, the applicant “immediately” offered the will for probate upon learning of potential title problems. In In re Estate of Hammack, No. 12-15-00246-CV, 2016 WL 1446083 (Tex. App.—Tyler Apr. 13, 2016, no pet.) (mem. op.), the applicant filed two months after learning probate was necessary to sell his house.
The court also compared Freeman to Ramirez v. Galvan, No. 03-17-00101-CV, 2018 WL 454733 (Tex. App.—Austin Jan. 10, 2018, no pet.) (mem. op.), where the same court had reversed a trial court’s refusal to admit a will to probate. In Ramirez, an immigrant widower unfamiliar with Texas law believed his wife’s will alone conveyed property to him. Upon being informed by a title company that probate was necessary, he consulted an attorney and “promptly” filed an application. The court in Ramirez found the trial court’s decision was against the great weight of the evidence and remanded for probate of the will.
The difference between Ramirez and Freeman came down to timing. The Ramirez applicant acted promptly after learning of the need to probate. Hobert Freeman waited a full year. The court found it could not construe waiting a year after receiving explicit advice from a lawyer as “prompt” action.
The Takeaway
The Freeman decision establishes clear guidance about timing expectations when someone discovers an old will and learns it needs to be probated. Texas courts will excuse lengthy initial delays when the applicant genuinely didn’t know about the will’s existence or didn’t understand probate requirements. However, once the applicant receives explicit advice from an attorney that the will needs to be filed, the duty to act with reasonable diligence becomes stringent. Waiting a full year after a lawyer tells you to probate a will exceeds the bounds of reasonable diligence, particularly when someone files a competing legal claim during that year. Personal circumstances like limited education and lack of legal sophistication cannot excuse indefinite delay after receiving professional advice about what needs to be done. The message for executors and family members who discover old wills is straightforward: act promptly once you learn probate is necessary. “Promptly” means weeks or perhaps a few months, not a full year. If you consult a lawyer who tells you a will needs to be probated, follow through with filing the application as quickly as reasonably possible. Unexplained delays of many months or a year will likely result in a finding of default that prevents the will from being admitted to probate, leaving the estate to pass through intestacy laws rather than according to the deceased person’s expressed wishes.
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