To Probate or Not To Probate – That Is The Question

There’s been a recent flurry of cases interpreting a Texas law that has been on the books for a mere 136 years. As far as Texas laws go, that’s a relative newcomer.

The law prohibits a Will from being admitted to probate more than 4 years after the Testator (the person who made the will) dies. There is one exception – the will can be admitted if the person applying for the probate was not in default for failing to present the will for probate.

Why the sudden interest in this somewhat obscure law? Because for decades it was common practice not to bother probating a Will if the testator did not, apparently, own any property. Trouble is, property interests have a habit of popping up decades later, and that is what is happening now.

A good example is the Rothrock case. In 1994 Everett Rothrock died, leaving a Will that appointed one of his sons, Jerry, as the executor and sole beneficiary of his estate. Jerry couldn’t find any property, and he and his 5 siblings decided not to go to the trouble of probating the Will.

Fourteen years later Jerry found out that Everett had owned a mineral interest. Jerry then tried to probate the Will so he didn’t have to split the mineral interest with his siblings.

Nope, the Court said, and used some fairly harsh terms in its opinion. A person who had custody of a Will and did not present it for probate for mere personal considerations, or under the assumption that his title to property was safe without probating the Will, was in default. Jerry failed to show reasonable diligence and had no legal excuse. The court also pointed out the Jerry was a successful oil and gas attorney, and should have known better.

The case decisions seem to rely heavily on individual facts in determining if the proponent was “in default.” They all have one point in common – the Will was not offered within 4 years of the Testator’s death, and that’s why there is litigation.

The take-away? Probate the Will.

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The information contained in this article is general information only and does not constitute legal advice.