6Dec

Texas: Failure to Offer a Will for Probate

The Issue:

Probate is the process of validating a will and thereafter administering the estate of a deceased person according to the will’s terms. There are different probate law attorneys all over the world, for example, there are Texas Probate Law firms as well as this probate attorney Tampa too! As title attorneys and landmen often see, people frequently fail to offer Wills for probate. Perhaps the existence of a Will is discovered in an affidavit of heirship, or a recital in a later instrument. Perhaps the reason the parties failed to offer the Will was they didn’t realize they needed to do so, or perhaps it was because the will could not be found. As we’ll discuss in this article, the discovery of an unprobated will requires landmen and title attorneys to perform a certain level of due diligence, and the reason the parties failed to offer the Will for probate will have a substantial effect.

The Law:

The quick’n’dirty portion of the law, Section 73 of the Texas Probate Code, provides us with the following:

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

Typically, a Will that isn’t offered for probate within four years is no good, and is of no effect to title. That means that where there is a failure to offer a will for probate, for more than four years, and where no exception applies, the estate should pass according to intestate succession.

Example One:

Let me give you an example:

Mary Dillinger had three children, all of which lost touch early in their adult lives. As such, when Mary became quite close with her non-relative neighbors and their children, (we’ll call them the “Johnsons”), she decided to disinherit her children by writing a will that bequeathed all her rest and residue to the Johnsons. After Mary passed away, the entire community knew the Johnson’s were named in the will, so the Johnsons decided it wasn’t worth the money to offer Mary’s Will for probate. The Johnsons moved onto Mary’s old property and put it to good use. Five years later, Big Oil Co. decided to lease the land. They received leases from the Johnsons. Hearing word of this, Mary’s children came along, and claimed that they were the rightful owners of the land.

Who owns the land? The Johnsons? Mary’s children? Well here we have a Will that was known, and yet no one offered it for probate. Because the will wasn’t offered for probate within the four years required by Section 73, Mary’s children would receive title to the land via Texas Intestate Succession. It’s a harsh outcome for the Johnsons, but Big Oil Co. needs to hurry and lease up Mary’s children. That’s what can happen when there is a failure to offer a will for probate.

Example Two:

BUT let’s say the facts were a little different:

After Mary’s death, the Johnsons met with Mary’s lawyer that drafted her Will. The Lawyer said that the Johnsons owned everything, and weren’t supposed to do anything. Relying on the Lawyer, the Johnson’s took over Mary’s property and put it to good use. Mary’s children and Big Oil Co. later came along.

Now who owns the land? Pay particular attention to the portion of Section 73 that I placed in italics. A party can be excused from the four year rule if they are found to not be “in default.” “Default,” as used in this statute, has been taken to mean “a failure due to the absence of reasonable diligence on the part of the party offering the instrument.” [1]In the Estate of Rothrock, 312 S.W.3d 271, 274 (Tex.App.-Tyler 2010, no pet.), (quoting Brown v. Byrd, 512 S.W.2d 753, 755 (Tex.Civ.App.-Tyler 1974, no writ)). The difficult idea in performing due diligence is that whether the party is in default is a fact-specific question, which may not be revealed in the record. [2]Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no writ); Kamoos v. Woodward, 570 S.W.2d 6, 7-8 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.) Making it even more difficult, Texas caselaw leans heavily in favor of allowing a will to be offered for title purposes where there is a reasonable excuse for failing to probate the will during the four year period. [3]Chovanec, 881 S.W.2d at 137. Even where the person had a belief that probate was unnecessary has been found sufficient to allow a late probate. [4]Armstrong v. Carter, 291 S.W. 626, 627 (Tex. Civ. App. 1927, no writ), cited with approval in In re Estate of Campbell, 343 S.W.3d 899, 903 (Tex. App.—Amarillo 2011, no pet.)

One case was nearly identical to Example Two above, and it was decided that particular Will was appropriate to allow for probate. Unfortunately, however, courts around the state differ on the level of proof required to find that the applicant was not in default for not having brought the will within the limitations period.

So What Do We Do?

So what does this mean for a title attorney or landman? Now don’t get me wrong. Every time there is a person in your chain that has deceased, and the property passed by intestate succession, landmen and title attorneys aren’t necessarily required to go out and scour the earth for the mere possibility of a missing will; especially not when a will was never hinted to in the records. [5]Tex. Prob. Code § 73(b), providing “if any person shall purchase real or personal property from the heirs of a decedent more than four years from the date of the death of the decedent, for value, in good faith, and without knowledge of the existence of a will, such purchaser shall be held to have good title to the interest which such heir or heirs would have had in the absence of a will, as against the claims of any devisees or legatees under any will which may thereafter be offered for probate.”

However, often times we are faced with a situation where we know a Will existed, we know that it wasn’t offered for probate, but we have no idea what that Will said. Often times, a Title Opinion will assume that the Will named the same takers as would receive the property under Texas Intestate Succession. But sometimes, especially when we are alerted to the possibility that the will was not offered due to some sort of misunderstanding or other possible reasonable excuse, and especially when the four year period ended relatively recently, additional due diligence may be necessary.

From the broker’s perspective, perhaps an affidavit regarding the failure to file the Will has been recorded? Perhaps an instrument filed of record discusses the failure to probate in a recital?

From the title attorney and curative landman’s perspective, additional requirements/objections may need to be made in the title opinion. For example, it may be appropriate to obtain a copy of the Will and determine who the property was bequeathed to. In some circumstances, it may be necessary to obtain a disclaimer from those named in the Will. In other cases, an affidavit may be necessary.

Conclusion:

This is a highly fact-specific issue, and should be discussed with a title attorney. But in any case, a known will that was not offered for probate requires a few more layers to be peeled back and researched, in order to complete a sufficient level of due diligence.

Austin Brister
Austin represents oil and gas exploration and production companies and landowners in a wide variety of complex commercial litigation matters, including contract and property disputes, royalty disputes, breach of lease cases, lease termination/perpetuation disputes, and an array of other issues in the upstream oil and gas sector. Austin has prosecuted and defended claims in state courts and federal courts. Austin strives to find practical business solutions to complex issues, but if necessary, he works hard to implement effective strategies in the courthouse.
Austin Brister

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9 comments


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  1. I just came across your blog. I made sure to add it to my RSS feed.

    Thanks for a great reference article on probate issues in Texas.

  2. Excellent. Thanks!

  3. Very good information. Right on spot, as we’re working similiar issues all the time.
    Thanks!

  4. This is a great article and of valuable use. This problem is always popping up. It’s a long and exasperating exercise to “fix” and no one is ever happy in the end.
    PROBATE YOUR WILLS FOLKS~!
    Thanks for sharing
    Rj Romans

  5. Glad I found this blog! People sometimes neglect to offer their wills for probate, not knowing the repercussions of having failed to do so. Thank you for sharing the information!

  6. “So do this mean that if a will on probate, vanished from docket C-1-PB-10-001742 AUSTIN tx and an heir with no identity, holds an Afidavid of Heirship plus two warranty deeds and can point to erroneous news papers entries of death along with State Erroneous entries of identifying correct names matching correct Social Security Number’s of true and verifiable living persons,who win’s…?”

  7. “So do this mean that if a will on probate, vanished from docket C-1-PB-10-001742 AUSTIN tx and an heir with no identity, holds an Afidavid of Heirship plus two warranty deeds and can point to erroneous news papers entries of death along with State Erroneous entries of identifying correct names matching correct Social Security Number’s of true and verifiable living persons,who win’s…?”

© Copyright 2012-2018, McGinnis Lochridge LLP. All Rights Reserved. DISCLAIMER: The information in this article is for general information purposes only. This article should not be substituted for legal advice and should not be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or reading this article does not constitute, an attorney-client relationship. You are encouraged to contact an attorney for legal advice concerning the information provided in this article.
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