The law sets a four year time period to probate a will. This rule has been the subject of quite a few probate disputes. These disputes often look to various fact patterns where parties are looking for exceptions.
One such example is where a named Executor does not probate the will within the four year period. But assume that person dies, and then someone else who is to inherit from the executor discovers the will for the first time and immediately files to probate it. Is the probate of the will timely, as the second inheritor filed it within four years of the time they discovered the will?
The courts grappled with this in the case of Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019). The question was whether a will can be admitted to probate after the four-year deadline in this situation.
Facts & Procedural History
Norman and Linda divorced. Norman then married Patricia, whose children from a prior marriage included Douglas and Debra (collectively referred to as the Butlers). Patricia died in 2006. Patricia’s last will and testament left her entire estate to Norman. Norman never probated Patricia’s will. He never remarried. He died in 2015. His will left most of his estate to his ex-wife Linda, who was appointed executor.
Linda discovered Patricia’s will while going through Norman’s belongings after his death. In her capacity as executor of Norman’s estate, she offered the will for probate as a muniment of title nine years after Patricia’s death. The Butlers contested probate on the ground that it was barred by the four-year limitations period in Section 256.003(a) of the Texas Estates Code.
The Butlers argued that Norman’s failure to probate Patricia’s will constituted the relevant “default” under the statute. Linda offered no evidence that Norman was not in default in failing to probate the will. However, she asserted that she—not Norman—was the “applicant” in Section 256.003(a). She argued she was not “in default” because she offered the will for probate only a month after discovering it.
The trial court granted the Butlers’ motion for summary judgment and dismissed Linda’s application. The court of appeals affirmed. The appellate court concluded that as executor of Norman’s estate, Linda stood in the estate’s shoes. Therefore, Norman’s default in probating Patricia’s will applied to her.
The court of appeals added that even if Linda had applied to probate the will in her individual capacity as a devisee of a devisee, Norman’s default would still bar her application under prior court precedent. The court acknowledged that courts of appeals had split on whether the precedent required such a result. The court concluded that it does, and the Supreme Court weighed in.
The Four-Year Limitations Period Has Deep Historical Roots
The four-year limitations period in Section 256.003(a) has been part of Texas statutory law since at least 1879. Article 1828 of the Revised Civil Statutes provided: “No will shall be admitted to probate after the lapse of four years from the death of the testator, unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid.”
Today Section 256.003(a) of the Estates Code is substantially the same. It states: “Except as provided by Section 501.001 with respect to a foreign will, a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.”
The statute serves to balance competing interests. On one hand, Texas law respects testamentary intent and seeks to honor what people want done with their property after death. On the other hand, estates cannot remain in limbo forever. Creditors need resolution. Heirs need certainty. Property needs to move into the hands of its rightful owners so it can be used productively.
The four-year period represents the Legislature’s judgment about where to strike this balance. During the first four years, anyone with standing may probate a will. After four years, the door closes unless the person seeking probate can show they were not in default in failing to present it earlier.
Who Qualifies as an Applicant Under Texas Law?
The Texas Estates Code authorizes three categories of persons to apply to probate a will. First, the testator’s executor may apply. Second, an independent administrator designated by all of the distributees in accordance with the Code may apply. Third, an interested person may apply.
The Code defines “interested person” as “an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate.” This definition is intentionally broad. It encompasses anyone who would be affected by whether the will is probated.
Linda’s application alleged that she qualified as an interested person “in her capacity as Executrix of” Norman’s estate. Norman’s estate qualified as an interested person because Norman was Patricia’s heir, devisee, and spouse. Linda never pleaded that she qualified as an interested person in her individual capacity as Norman’s devisee.
The distinction matters under Texas law. The Legislature has decreed that “[t]he rights, powers, and duties of executors and administrators are governed by common law principles to the extent that those principles do not conflict with the statutes of this state.” The common law is clear: an executor “stands in the shoes” of the decedent.
In other words, an executor has no greater powers, rights, or privileges than the decedent whose estate he or she represents. The Texas Supreme Court agreed with the court of appeals that because Linda was standing in the shoes of Norman’s estate, the default inquiry must focus on Norman.
It was undisputed that there was no proof that Norman “was not in default” in failing to probate Patricia’s will within four years of her death. Linda was therefore barred from probating Patricia’s will in her capacity as Norman’s executor.
Could Linda Qualify as an Interested Person in Her Own Right?
The Court’s holding that Linda could not probate the will as Norman’s executor did not end the inquiry. Linda would qualify as an interested person in her own right as Norman’s devisee. The statutory definition of interested person includes anyone “having a property right in or claim against an estate.”
Texas courts have reframed this standing test broadly. The question is whether “the proponent possesse[s] a pecuniary interest to be benefited and affected by the probate of the will and one which would be materially impaired in the absence of its probate.” Because Linda stood to inherit Norman’s property, and Patricia’s will left her property to Norman, Linda had a pecuniary interest that would be affected by the probate of Patricia’s will.
The court of appeals held that even if Linda had applied to probate Patricia’s will in her individual capacity, Norman’s conduct must still be considered in determining the existence of default. The court reasoned that “Linda’s right to probate Patricia’s will is dependent on the existence of that right in Norman.”
Why the Statutory Text Resolves the Question
The Texas Supreme Court concluded that Linda had the better argument. The statutory standard for permitting or disallowing probate of a will after the four-year mark is whether there is proof that “the applicant for the probate of the will was not in default.” There is no mention of potential default by anyone else.
Texas courts must “construe [a] statute’s words according to their plain meaning” because “changing the meaning of [a] statute by adding words to it is a legislative function, not a judicial function.” Twenty years before refusing the writ in Faris, the Supreme Court explained: “Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere.”
The Court continued: “They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.”
The Court held that under Section 256.003(a), when an applicant seeks late probate of a will in her individual capacity, only the applicant’s conduct is relevant to determining whether she “was not in default.” The Court remanded the case to the trial court to give Linda an opportunity to amend her pleadings to pursue probate of Patricia’s will in her individual capacity.
The Takeaway
When determining whether a will can be probated more than four years after the testator’s death, Texas courts look solely at whether the current applicant was in default in failing to present the will earlier. Prior beneficiaries’ delays do not get imputed to subsequent applicants who seek to probate the will in their individual capacity. This is based on the language in the statute. The statute says “the applicant” must not be in default, and courts must take those words as written rather than adding requirements the Legislature did not include. This holding honors testamentary intent when later applicants discover wills and act promptly to probate them, even if earlier beneficiaries failed to do so.
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