What is the Statute of Limitations for Probate in Texas if the Will is Lost?
Full Question:
Answer:
In Texas, a will must be filed for probate within four years after the date the testator died. This statute of limitations has only one exception: if the person applying for probate was not “in default” then the will may be offered to the court as a muniment of title. Default means failure to use reasonable diligence. It may involve the amount of time that has passed, lack of knowledge about the law, and discovery of new information.
For further discussion, please see;
http://www.burger.com/willfind.htm
Please see the following Texas statutes:
§ 76 PROB. CODE Persons Who May Make Application
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
An executor named in a will or any interested person may make
application to the court of a proper county:
(a) For an order admitting a will to probate, whether the same is
written or unwritten, in his possession or not, is lost, is destroyed, or
is out of the State.
(b) For the appointment of the executor named in the will.
(c) For the appointment of an administrator, if no executor is
designated in the will, or if the person so named is disqualified, or
refuses to serve, or is dead, or resigns, or if there is no will. An
application for probate may be combined with an application for the
appointment of an executor or administrator; and a person interested in
either the probate of the will or the appointment of a personal
representative may apply for both.
§ 5C PROB. CODE Actions to Collect Delinquent Property Taxes
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
(a) This section applies only to a decedent's estate that:
(1) is being administered in a pending probate proceeding;
(2) owns or claims an interest in property against which a taxing unit
has imposed ad valorem taxes that are delinquent; and
(3) is not being administered as an independent administration under
Section 145 of this code.
(b) Notwithstanding any provision of this code to the contrary, if the
probate proceedings are pending in a foreign jurisdiction or in a county
other than the county in which the taxes were imposed, a suit to
foreclose the lien securing payment of the taxes or to enforce personal
liability for the taxes must be brought under Section 33.41, Tax
Code, in a court of competent jurisdiction in the county in which the
taxes were imposed.
(c) If the probate proceedings have been pending for four years or less
in the county in which the taxes were imposed, the taxing unit may
present a claim for the delinquent taxes against the estate to the
personal representative of the estate in the probate proceedings.
(d) If the taxing unit presents a claim against the estate under
Subsection (c) of this section:
(1) the claim of the taxing unit is subject to each applicable
provision in Parts 4 and 5, Chapter VIII, of this code that relates
to a claim or the enforcement of a claim in a probate proceeding; and
(2) the taxing unit may not bring a suit in any other court to
foreclose the lien securing payment of the taxes or to enforce personal
liability for the delinquent taxes before the first day after the fourth
anniversary of the date the application for the probate proceeding was
filed.
(e) To foreclose the lien securing payment of the delinquent taxes, the
taxing unit must bring a suit under Section 33.41, Tax Code, in a
court of competent jurisdiction for the county in which the taxes were
imposed if:
(1) the probate proceedings have been pending in that county for more
than four years; and
(2) the taxing unit did not present a delinquent tax claim under
Subsection (c) of this section against the estate in the probate
proceeding.
(f) In a suit brought under Subsection (e) of this section, the taxing
unit:
(1) shall make the personal representative of the decedent's estate a
party to the suit; and
(2) may not seek to enforce personal liability for the taxes against
the estate of the decedent.
§ 89B PROB. CODE Proof Required for Probate of a Will as a Muniment of
Title
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1,
2014.]
(a) General Proof. Whenever an applicant seeks to probate a will as a
muniment of title, the applicant must first prove to the satisfaction of
the court:
(1) That the person is dead, and that four years have not elapsed since
the person's death and prior to the application; and
(2) That the court has jurisdiction and venue over the estate;
and
(3) That citation has been served and returned in the manner and for
the length of time required by this Code; and
(4) That there are no unpaid debts owing by the estate of the
testator, excluding debts secured by liens on real estate.
(b) To obtain probate of a will as a muniment of title, the applicant
must also prove to the satisfaction of the court:
(1) If the will is not self-proved as provided by this Code, that the
testator, at the time of executing the will, was at least 18 years of
age, or was or had been lawfully married, or was a member of the armed
forces of the United States or of the auxiliaries of the armed forces of
the United States, or of the Maritime Service of the United States, and
was of sound mind; and
(2) If the will is not self-proved as provided by this Code, that the
testator executed the will with the formalities and solemnities and under
the circumstances required by law to make it a valid will; and
(3) That such will was not revoked by the testator.
