Roles In Probate and Is the 4 Year Rule Gone?

Know your roles.  They are key to deciphering your rights under contract and statute.

A good example is found in the Texas Supreme Court’s recent decision in the Ferreira v. Butler case.

Here is the background.  Norman divorced Linda.  He then married Patricia, who had children from a prior marriage.  Patricia died in 2006, leaving a will that left her entire estate to Norman.

Norman never probated Patricia’s will.  He died in 2015, and his will left most of his estate to his ex-wife Linda.  Linda probated Norman’s will and was named executor of his estate.

Linda thus had two roles regarding Norman’s estate:  executor and devisee.

After Norman’s death, Linda discovered Patricia’s will among Norman’s papers.  This was huge.  As things stood, since Patricia’s will had never gone through probate,  Patricia’s estate had gone to her children through Texas’ intestacy laws.    If Linda could successfully probate Patricia’s will, then Patricia’s estate would go to Norman, and, under his will, end up with his ex-wife Linda.

Linda, however, had a problem:  more than 4 years had passed since Patricia’s death.  Normally wills cannot be probated after that 4- year period.  There is, however, an exception.  If the applicant for probate of a will can show that she was not in default for failing to timely probate the will, then the will can be admitted to probate.

So Linda, in her role as executor of Norman’s estate, filed an application for probate of Patricia’s will.

Two of Patricia’s children, Douglas and Debra, were not amused.   They fought the probate of Patricia’s will and won in trial court and the court of appeals.

Their argument was that Linda, as executor, stood in the shoes of Norman regarding his rights on Patricia’s will.  Norman was in default for not timely probating Patricia’s will.  His default was therefore imputed to his executor Linda, and she was thus time-barred from probating the will.

The case advanced to the Texas Supreme Court, which agreed that Linda in her role as executor could not probate the will. But it did not stop there.

The Court went on to hold that Linda in her role as a devisee of Norman’s estate could probate Patricia’s will.

It reasoned that Linda could apply to probate Patricia’s will because her role as a devisee under Norman’s will gave her an interest in Patricia’s estate.  The court said, “Because Linda stood to inherit Norman’s estate, and Patricia’s will left her property to Norman, Linda has a pecuniary interest that would be affected by the probate of Patricia’s will.”   Linda, in her role as Norman’s devisee, was not in default for the failure to probate timely probate Patricia’s will.  Linda’s role did not arise until Norman’s death.

Because it was announcing new law, the Court gave Linda the opportunity to amend her pleadings and pursue the probate in her individual role as a devisee.

So, 13 years after Patricia’s death, Patricia’s estate ended up in the hands of her spouse’s ex-wife.

Roles matter.

Virginia Hammerle is a licensed Texas attorney.  Her practice includes estate planning, litigation, guardianship, and probate law.  See for her blog and newsletter sign-up.  This column does not constitute legal advice.