Learn About Unfair Wills and Texas Probate - Time Limits Time limits for contesting a will

Learn what the statute of limitations is for contesting a will in Texas?

Find out how much time  do you have to claim your inheritance?In general, a will contest must be filed within two years from the date the will is admitted to probate. Click on the highlighted terms to read about the time limits for contesting a will and to read what "admitted to probate" means.

But what happens in those cases where you don't know you have an inheritance or don't know who your real parents are? Do you have more than two years in those cases? In several inheritance cases decided in 2010 by the Texas Supreme Court, the issue of how long a person has for contesting a will and claiming their inheritance was addressed. The decisions related to non-marital or illegitimate children and children who were put up for adoption. Texas has a general four year statute of limitations that applies if no other limitation period is applicable and the court applied that four year limitation period to cases where children did not know they had an inheritance or where they did not know who their parents were. The probate cases all dealt with claims relating to illegitimate children, some large South Texas ranches, oil interest and long dead decedents. The rancher had died in 1948. He was very wealthy. He left a will. His estate was probated and there were several probate proceedings over the years. His estate was distributed, taxed and closed in 1952. The probate court at the time found that he did not have any children.

The cases were brought by a woman who was born to the house maid of the rancher in the 1920's. She said that her mother never told her who her father was until shortly before she died in the early 2000's. The mother revealed that the long dead rancher was her father. The woman then filed several lawsuits in several different courts trying to reopen the old probate cases. She also filed a lawsuit to exhume the body of the rancher to prove that she was his child and to claim part of his estate. The Supreme Court said that all of the woman's claims were barred by limitations. The Court denied the exhumation saying that it was assuming that the woman was the illegitimate child of the rancher. But even assuming as true her claims that she was the child of the rancher, the Court held that the lawsuits came too late.

The woman argued that she did not know that the rancher was her father until shortly before she filed the suits and could not have filed them earlier. She argued that the Court should apply the discovery rule to her case. The discovery rule is a rule that says limitation does not start running until you know (discover) that you have a claim. If you don't know you have a claim, limitations doesn't start. The Court held that the discovery rule did not apply in probate cases. The court held that the catch-all four year statute of limitations controlled in these situations. Since the estate had been closed for more than four years, the woman's claims had to be dismissed. 08-0534, 04-0607, 08-0528, 08–0529.

The Court had previously applied the four limitation period to those children who were adopted but did not find out who their birth families were until more than four years after the probate cases had been closed. Little v. Smith, 943 S.W.2d 414, 423 (Tex. 1997).

UPDATE: In 2013, the Texas legislature passed a law that has the effect of overruling the above case. Starting in 2014, there is no limitation to declare heirship. EC 202.0025.

Remember, the two year limitations period applies to will contest unless you don't know you have a claim such as when you don't know who your parents are. If you find out who your parents are within four years of the closing of their probate cases, you may be able to assert your inheritance rights. And remember too, these cases apply the limitation period starting from the date the probate cases were closed, not four years from the death of the decedent! A probate case may not be closed for several years after the death of the decedent. Because the courts are not willing to extend the limitation period in probate cases, you should act as soon as you know or think that you have a claim.

Copyright by a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please click on the "Contact Us" tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

Can you probate a will after four years?

Statute of limitations on contesting a will in Texas.

A will has to be filed for probate within four years of the death of the testator. After four years, a will can be filed as a muniment of title but only if the person filing the will is not "in default." When a late filed will is opposed, the issue is usually concerned with whether or not the person filing the will late was in default.

In a case on this issue decided in 2011, the testator had children by a prior marriage. His wife had children by a prior marriage. He executed a will leaving everything to his wife if she survived him. The testator died in 2002. No will was probated by his wife. Six years later, she died. While going through her papers, her children found the will. Although it was more than four years after the testator died, the wife's children filed the will for probate. A daughter from the testator's first marriage contested the probate contending that the wife's children were in default for not filing it within four years. (If the testator died intestate, his children from the prior marriage would inherit his property, not the wife.)

The Court sided with the wife's children. It ruled that just because the wife was in default for not filing the will within four years, her children were not in default. They testified that they were not aware of the will until after their mother had died. The Court said that if they didn't know about the will and were not negligent in finding it, they were not in default. 343 S.W.3d 899.

In a 2013 case, the wife didn't file the will within four years. An attorney told her that she didn't need to file it, she could just file an affidavit of heirship. The wife did not know that such an affidavit would not pass the husband's separate property to the wife. A dispute arose between the wife and a son. The son claimed that the separate property belonged to the children because the wife did not probate the will within four years. He claimed that it was now too late to probate the will. The issue turned on whether the wife was "in default" for not filing the will within four years. The court ruled in favor of the wife. There are a number of cases where the courts have found that evidence that a proponent relied on counsel's advice was sufficient to support a finding that the proponent was not in default or to raise a material fact question of whether the proponent was not in default.  No. 11-11-00131-CV.

While the Texas Probate Code requires that a will has to be filed within four years of the death of the testator, a will can still be filed after that time if the person filing the will was not "in default" in not filing it within four years. Texas courts are quite liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon the showing of an excuse by the proponent for failure to offer the will earlier.

Copyright by a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please click on the "Contact Us" tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

The Statute of Limitations limits your time!

Take action now on your inheritance claim If you have an inheritance question including a dispute involving wills, trust, mismanaged estates or inheritance rights, you need to take action now. Each state has statutes of limitation that will prohibit you from taking any action if you wait too long.

It is important that you contact an attorney as soon as you suspect that there is a problem with an estate in which you have an interest. Even if you don't have a current interest but only a future interest it is necessary to contact an attorney now. If you wait, the estate may be dissipated and nothing will be left for you or your children.

Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please click on the "Contact Us" tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

Find Out About the Statute of Limitations to Challenge a Will.

Tyler Probate LawyerTime limits to contest a will

In Texas, the time limits for challenging a will, what the law refers to as the statute of limitationsstatute of limitations, is complicated.  It is complicated because the time limits for challenging the will center around the date that the will is admitted to probate, not the date of death of the testator.  See the article on the probate process to become familiar with how a will is probated and to learn what "admitted to probate" means.

You can oppose a will filed for probate before or after it is admitted to probate. There are benefits to challenging the will before it is admitted to probate. However, you can contest the will even after it is admitted to probate if you file the will contest before the statute of limitations runs out. You can challenge a will on several grounds. I have written on the grounds for contesting a will here and here.

The basic rule is that a person has two years from the date a will is admitted to probate to contest it.  That seems simple enough.  However, the proponent of the will has four years after the death of the testator to file the will for probate.  If the proponent files the will just before the four years is up, the contestant will have two years after that to contest the will (six years after the death of the testator!)  To complicate matters even more, a person who is not at fault can file a will more than four years after the death of the testator.  "Not at fault" usually means that the person who files the will for probate after four years did not know about the will during the four years after the testator's death but found it later.  If a person knows about the will and just doesn't file it, he is usually at fault and can't file it after four years elapses.  As with all rules, there are exceptions.  If the person knew about the will but was told by his lawyer that he didn't need to file it, he may not be at fault and may be able to file the will after four years.  In any event, the contestant can challenge the will within two years of the date that it was admitted to probate.

Minors have two years from the time they reach their majority to file a will contest.

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