When to Probate

When to Probate

First of all, let’s take a quick peek at Section 256.003 of the Texas Estates Code.

Section 256.003(a) dictates that “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 “Testator” is the person who owned the Will, and whose wishes are expressed therein.)

As the statute says, you should proceed with probate within four years after the Testator’s death.

If you wait until after four years have passed, then you must prove that you were not “in default,” meaning that you were not negligent or malicious in failing to probate the Will, and that the estate and its heirs were not harmed during the interim, among other things. The law requires swift probate of Wills because every beneficiary of a Will has a right to contest a Will and receive notice of potential property rights in the estate’s assets.

Further, a beneficiary of a Will technically has immediate rights to his or her share of the estate’s assets. If the named Executor neglects to timely file the probate, and waits too long, the status of the beneficiaries might change. For example, in some cases, a beneficiary might have passed away during the interim. What, then, happens to that beneficiary’s share of the estate? Or, in other cases, what happens if your family discovers new assets (about which you were previously unaware) that your loved one left behind? It depends on the Will’s details, but, as you can imagine, waiting too long greatly complicates things, and encourages the court to find the Executor in default.

If the Executor cannot prove that he was not “in default,” then the court might totally reject the Will. Yes, although there is a Will indicating your loved one’s wishes, that Will is nothing more than a blank sheet of paper for legal purposes. In this scenario, when a Will is rejected, then Texas law will dictate who gets the property. Therefore, even if your loved one desired that certain assets be distributed to certain people in certain amounts, Texas law will step in and distribute it according to the rules of “Descent and Distribution,” found in Section 201 of the Texas Estates Code. Most people prefer that their property pass according to their desires, and not according to government rules!

Now, if the Executor does prove that he was not “in default,” a Will can still be admitted to probate after four years, but it is harder to do, and it is less effective than a regular probate. Specifically, that Will can only be probated as a “Muniment of Title.” As you may recall from another article, a “Muniment of Title” proceeding can transfer real property because recording the Will on the property records effectively deeds the property to the Will’s mentioned beneficiaries. However, to do this, the associated estate must have no debts (apart from real property liens). If the estate does have debts, this can give rise to some complications. For example, your family might need to find a way to pay those debts out-of-pocket before the property can be transferred.

For an explanation, consider Section 256.003(b) of the Texas Estates Code, which dictates that “Letters Testamentary may not be issued if a will is admitted to probate after the fourth anniversary of the testator’s death.”

What does this mean? As you may recall from another article, Letters Testamentary are the documents that give the Executor full legal authority to act on behalf of the estate, to take control of the estate’s assets, to pay the estate’s debts with those assets, and to distribute the remaining assets to the beneficiaries of that estate.

In many cases, estates do leave debts that need to be paid. If there is no Executor who can take control of the estate’s assets and pay the debts therefrom, then, to probate the Will as a “Muniment of Title,” it might first be necessary to pay the estate’s debts in advance and out-of-pocket. Only then might the estate qualify for a “Muniment of Title” probate after which your family can finally receive the real property. In short, waiting too long and being forced to probate a Will as a “Muniment of Title” can create a difficult burden.

Even more, if the Will cannot be probated at all, then your loved one’s estate might be forced into more expensive proceedings requiring a formal heirship determination or even a “Dependent Administration.” These procedures can be slower and more expensive, and it is advisable to avoid them in many circumstances. Why? Your family likely doesn’t want to wait forever to receive its inheritance, but, more importantly, such an expensive probate will eat away at the estate’s assets and diminish your family’s inheritance.

Don’t wait. Probate the Will. It will make your life a lot easier.