The Texas Estates Code provides that a will must be filed within 4 years of the death of the testator. A will can be filed after that time if the applicant is not “in default.”

The Texas courts have struggled with the issue of what “in default” means and how it is to be applied. The Texas Supreme Court resolved all of those issues in a case decided in 2019. 17-0901


Occasionally, a will is found more than 4 years after the testator died. Getting that will file for probate so that they will be a good chain of title to the testator’s property can be difficult. A will can be filed after 4 years if the applicant is not “in default.” What that phrase means has trouble Texas courts for many years. Some courts have applied the fault of a predecessor to the applicant and ruled that the will could not be admitted to probate because the predecessor was “in default.”


A man’s wife died. She left a will leaving everything to her husband. Her husband did not file the will for probate. More than 4 years later, the husband died. He left a will leaving everything to his 1st wife. As the 1st wife was going through his belongings, she found the will of his 2nd wife and filed it for probate. The children of the 1st wife opposed the probate saying that the husband was in default and therefore his 1st wife was also in default. The trial court agreed. On appeal the Court of Appeals agreed that the 1st wife was in default because the fault of the husband was applied to her. The case was then appealed to the Texas Supreme Court.


A Texas statute provides that “a will may not be admitted to probate after the fourth anniversary of the testator’s death unless . . . the applicant for the probate of the will was not in default in failing to” probate the will within that period.

In Faris v. Faris,  we held that a devisee’s default is imputed to his own devisee, though the latter is not himself in default. But the statute plainly states that it is the applicant who must be in default for limitations to run. We have never cited Faris, and today we overrule it. We vacate the lower courts’ judgments and remand the case to the trial court.

The statutory standard for permitting or disallowing probate of a will after the four-year mark is whether there is proof that “the applicant for the probate of the will was not in default”. There is no mention of potential default by anyone else.

(W)e also reject the test applied by the Seventh Court of Appeals that permits inquiry into whether permitting the late probate of a will would “work an injustice or frustrate the intent of the testator”… “Equity, like beauty, is often in the eye of the beholder.” The statutory text as written prevents litigation over the equities of a particular case and the inconsistent and unpredictable results that inevitably follow. 

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Texas Supreme Court Decides Standard For Filing A Will After Four Years

by | Apr 14, 2019 | Probate