The Texas Supreme Court Interpretation of the Four-year limitation on Probating a Will

December 20, 2021

A devisee who fails to probate the decedent’s will within four years of the decedent’s death is deemed ‘in default’ and may no longer probate the will.

• However, what if the applicant probating the will is not the devisee, but an ‘interested person’ who discovered the will less than four years ago?
• Is a devisee’s default also carried over to the applicant, rendering them unable to probate the will either?

The Ferreira v. Butler, 575 S.W.2d 331 (Tex. 2019) case controls.

 

Facts & Procedural History

 

In this case, Norman had divorced from Linda (who we’ll refer to as the defendant) and remarried Patricia, who had children from a prior marriage – Douglas and Debra Butler (who we’ll refer to as the plaintiffs).

Patricia died in 2006, leaving her entire estate to Norman. Norman never probated Patricia’s will, never remarried, and died in 2015. Norman’s will left most of his estate to Linda, appointed as executioner. Linda discovered Patricia’s will and offered Patricia’s will for probate nine years after Patricia’s death.

• As Patricia’s intestate heirs, the plaintiffs contested the probate of Patricia’s will, arguing that it was barred by the four-year limitation rule in Section 256.003(a) of the Texas Estates Code.
• Linda argued that she, not Norman, was the ‘applicant’ referred to in the statute. She claimed she was not ‘in default’ because she offered the will for probate only a month after discovering it.

 

The Texas Supreme Court granted Linda’s petition for review.

 

The four year limitation default by a devisee is not imputed to another applicant

 

The Texas Supreme Court reasoned that a person who offered a will for probate shortly after discovering their interest in the estate is not in default. The Court looked to the plain text of Section 256.003 to come to this conclusion.

• The statute provides that the standard for permitting or disallowing probate of a will after the four-year mark was whether there is proof that “the applicant for the probate of the will was not in default.”
• The statute does not use the word ‘initial devisee’ or mention potential default by anyone else other than the applicant.

 

Even if the decedent’s death was more than four years ago, one may still successfully apply the will to probate

 

In this case, The Court overruled the contrary holding of Faris v. Faris and held that a devisee’s default is irrelevant to an ‘interested person’ seeking to probate a will they recently discovered.

Here, the Court noted that Patricia died in 2006, Norman died in 2015, and Linda’s applied to probate Patricia’s will in 2015, nine years after Patricia’s death. Norman is undoubtedly in default because he failed to probate Patricia’s will within four years.

However, Linda may offer Patricia’s will to probate because she recently discovered the will in 2015 and probated the will the same year.

 

The Takeaway

Just because the decedent’s death occurred more than four years ago, does not mean that you are unable to probate their old will. As long as you are acting as an independent, ‘interested person’ and not probating the will as executor of the devisee’s estate, you may be able to probate the will on the condition that it has been less than four years since you discovered it, pursuant to Section 256.003 of the Texas Estates Code.