Q & A | Probating Wills

Q: You may have heard the following phrase from an attorney, “You cannot probate a will if more than four years have elapsed since the decedent’s death.”  Is this fact or fiction?

A: Fiction.  The statement that a will cannot be probated if more than four years have elapsed after the decedent’s death is actually an incorrect statement of the law as set forth in the Texas Estates Code (formerly the Texas Probate Code).

Section 301.002 of the Texas Estates Code actually states the following:

“Except as provided by Subsection (b), an application for the grant of letters of testamentary or administration of an estate must be filed no later than the fourth anniversary of the decedent’s death.”

What this means to us regular folks is that an applicant cannot apply for what we commonly refer to as an Independent Administration of the decedent’s estate wherein the applicant is seeking to have a personal representative (Executor or Administrator) appointed to handle the settlement of the estate. This can be a problem if the devisees of the decedent’s estate are dealing with property other than real property owned by the decedent. Not our problem—we deal with real property.

Texas law does not limit all probate proceedings from being opened beyond the four year limitations period set forth above. One such probate proceeding is the Probate of Will as a Muniment of Title authorized by Chapter 257 of the Texas Estates Code.  This chapter of the Code allows for title to pass to the devisees named in the will, without the appointment of a personal representative.  Once an Order under this chapter is received, it becomes part of the official public records thus making the devisees under the will the new owners (title holders) of the property.

The primary requirements for filing an application to probate the will as a muniment of title are: 1) a valid will, 2) that the testator’s (i.e. decedent’s) estate does not owe any unpaid debts, other than any debt secured by a lien on real estate; and 3) Medicaid has no claim against the estate for recovery of benefits received by the deceased person.

Because there is no limitations period under this Chapter of the Estates Code, it is possible to probate a will as a muniment of title beyond the four year limitations proscribed for Section 301.002. This can come in handy when the closing agent finds it necessary to clean up some old family disputes.

Have a great 2015!