How Soon Must A Will Be Probated After A Death? [Probate Q&A Video Series]

Posted by: Adair M. Buckner

How soon must a Will be probated after someone dies? In Texas, there is a deadline you generally must meet to probate a loved one's Will. You don't have to probate right away. However, I always encourage clients not to delay too long.

Learn more about the probate process and how soon you should probate a Will by watching the video and reading the blog below.

What Is The Timeline To Probate A Will In Texas After A Death?

When a loved one passes away, probate may be one of the last things you want to deal with. You do not have to probate a Will right away unless you need to do so because of a specific need to access some asset quickly that you cannot otherwise access. Some third parties holding the deceased’s assets will require that you be appointed as executor before they will deal with you.

On the other hand, there is a time limit to how long you have to probate a Will after an individual's passing. The Will must be probated within 4 years after the date of death, subject to some exceptions. If that is not done, the Will could be ignored, and your loved one's assets would pass as set out in the laws of intestate inheritance for Texas.

There are specific situations in which you may be able to obtain an extension on this deadline. If you can prove that the applicant for probate was “not in default” in failing to present the Will for probate on or before the 4-year deadline, the court may still allow for its probate. A person is considered "not in default" when they have a valid reason why they didn't submit the Will to probate. These reasons can include:

  1. The Will is concealed or unknown to the applicant until after the 4-year time period.

  2. The applicant needs the Will to establish a link in the chain of title to property to perfect title and not to receive any inheritance.

  3.  The applicant can prove that he or she sought legal advice before the deadline and was told by an attorney that probate was not needed.

  4. The applicant had limited resources and was unable to probate the Will in time.

  5. The deceased's estate was initially believed to contain no assets of value, but it has been subsequently determined that there are assets.

Unfortunately, family disagreements about whether to probate or not, or simply not knowing that the Will must be probated within the 4-year timeline usually are not considered valid reasons. The situations listed above are relatively uncommon, so to be safe, the probate process should be started within the 4- year period.

I usually recommend clients start to probate the Will within a month or 2 of their loved one's passing. Often, the passage of time makes gathering estate assets more difficult. Often, the passage of time makes identifying and gathering estate assets more difficult.



The Consequences Of Not Probating A Will On Time In Texas

I see many cases in which a Will was not probated within 4 years of the date of death. Losing a loved one can be devastating. Grief often affects your memory and ability to deal with “business-type matters” and makes it difficult to keep on top of tasks like probate. Probate may seem expensive, so many people put it off as long as possible to avoid the cost, or they may not have access to the funds to pay for the probate.

If the deadline to probate is missed, this can leave you in a very difficult situation. As mentioned above, Texas law provides that, if probate is not accomplished in a timely manner, the Will will be treated as if it did not exist. This means the estate (which likely is almost completely community property if the spouse was married at the time of death) will pass by Texas law of intestate succession, as follows:

  • If the spouse is still living, but there are children of the deceased from a prior marriage, the deceased spouse's one-half interest in community property passes to all of the children of the deceased, including those from the current marriage, not to the surviving spouse. This comes as a huge shock to many spouses in second, third, or more marriages.
  • If there is no surviving spouse, the estate will pass to all biological or adopted children of the deceased or their descendants, if any of them predeceased your loved one.
  • If your loved one had no spouse or children, his or her property would be split among the parents and/or siblings, depending on who is still alive. See this chart for the complicated formulas that come into play in this situation.

This inheritance scheme often is not what a couple believes will happen to community property upon the death of one of them. It also may not be what the deceased loved one would have wanted for the distribution of his or her estate. Some people have children they do not want to receive anything from their estate. In fact, failure to probate timely can lead to unfortunate situations in which an individual does not receive what the deceased intended had the Will been probated timely. I explain more of the consequences of missing the probate deadline, as well as situations in which you can avoid probate, in this blog.


Don't Wait Too Long To Start The Probate Process 

For reasons set out above, you shouldn't wait too long to start the process. At the same time, you do not need to probate a Will immediately after your loved one's death. Some people think you must see an attorney about probate straight after the funeral home visit, which is not true. I often advise clients to give the family time to process the loss and wait until they are in a good frame of mind to move forward. This depends entirely on your family and situation, but it may be a couple of weeks or even months.

If you would like to learn more about the probate process, read the other blogs in my Probate Q&A Series below:

Do you need help probating a Will in the state of Texas? Contact Adair M. Buckner using the button below to schedule a free initial consultation*.

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

**This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.


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