Article

What Happens If A Will Is Not Probated In Texas?

Mar 21, 2017

A person creates a will to divide their property according to their wishes. Upon their death, this will is submitted to the Texas probate court for the county in which the deceased lived.

In the state of Texas, probate is the legal process through which the court recognizes an individual’s death and authorizes the distribution of their estate according to instructions as stated in the deceased’s will (or by state law, if there is no will).

Going through the probate process in Texas is usually a straight forward procedure as long as all the rules are followed. When the rules aren’t followed – for example, by waiting too long to submit a will for probate – complications can arise. The state may even refuse to recognize that a will exists and divide an estate according to the rules of intestate succession.

Statute of Limitations for Beginning the Probate Process in Texas

The probate process begins when an heir, beneficiary or estate agent submits the will to the probate court in the county in which the decedent resided, along with a cover sheet, application and death certificate. There are limitations to how long a person can wait to start the probate process. According to Section 73 of the Texas Probate Code:

No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid

Intestate Succession May Not Benefit the Beneficiaries

Usually, if a will is not submitted within four years of the deceased’s passing, and no exceptions apply, property owned by the decedent will be distributed according to the Texas laws of intestate secession. These are the same laws that are used to divide and distribute property when there is no will. That’s basically how the state views the situation: after four years, there is no valid will.

Under intestate secession, the state of Texas assigns the decedent’s property to the surviving heirs according to a rigid formula based on their legal relationship to the deceased. Any special provisions, such as leaving money to a favorite charity, will to be completely ignored by the state, despite the decedent’s wishes.

There are various reasons why a will is commonly not submitted to probate court within the required time period, such as the heirs were unaware of the will’s existence, or the will was lost or destroyed. Whatever the reasons, not submitting a will for probate can have serious consequences for the estate’s heirs and beneficiaries.

If you have avoided submitting a will for probate, speak with a Texas probate attorney about your situation. Only under certain circumstances can a will be submitted to probate after the four year limit has expired.

Each probate situation is different; an experienced probate attorney can examine the facts and evidence in your case and advise you on the best way to move forward.