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What happens if a will is not probated in four years in Texas?

Waco, TX |

Will it revert to the spouse since Texas is a joint property state?

Attorney Answers 2


The property is to be distributed according to the terms of the Will. If an executor attempts to file the Will for probate after 4 years, the proceeding will be a Muniment of Title (Texas Probate Code 89A) and not an Independent or Dependent administration (Texas Probate Code 73 & 74). The decedent is only able to give, bequeath or devise property (real or personal) owned by the decedent (including the decedent's 1/2 of community property, and the decedent's separate property). A decedent cannot give, bequeath or devise any property the decedent does not own, including the surviving spouse's community property. I hope this helps.

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Although the Texas Probate Code says that a Will must be offered for probate within four years of the date of death, there are exceptions (as always). If the Will was not in the possession of the person who now seeks to have it probated then it may still be possible to have an independent administration on that estate. There are several other factors to be considered which would assist an attorney in advising on these facts. It is also possible for an individual to seek the probate of a Will that is not in his/her possession. Bottom line is talk to an experienced probate attorney in your area and provide him/her all of the facts.

DISCLAIMER: This is not specific legal advice and does not establish an attorney/client relationship.

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