Statute of Limitations on Probate of Wills for Texas Minerals

by Terry Walcott
Delay in probating a will at your own risk

Delay in probating a will at your own risk

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The statute of limitations for probating a will in Texas is four years from the death of the testator, the person who wrote the will. In some cases, a will may be submitted to probate after the four-year period has expired, but the person offering the will must demonstrate he exercised reasonable diligence to avoid the late submission. Unfortunately, there is no hard and fast rule for what constitutes reasonable diligence when the testator owned mineral rights.

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Kamoos v. Woodward

Kamoos v. Woodward and In re: Estate of Rothrock are two influential Texas cases dealing with a person's late attempt to probate a will after discovering the existence of mineral rights. In the Kamoos case, a widow submitted her deceased husband’s will to probate after discovering, five years after his death, he was heir to a royalty interest. The issue before the court was whether the widow exercised reasonable diligence to avoid the late probate submission. The court ruled in her favor because she was impoverished following her husband’s death and applied for probate immediately after discovering his royalty interest.

In re: Estate of Rothrock

In the Rothrock case, the testator's son sought to probate his father's will 13 years after his father's death. The reason for the delay was the family initially thought the father's estate was small and probate unnecessary; the son did not discover his father owned valuable mineral rights until nine years after the statute of limitations expired. As was the case in Kamoos, the issue was whether the son had exercised reasonable diligence. The court held he had not. The mere fact the testator's children had agreed not to probate his will, believing their father's estate was small, was not a sufficient excuse.

Difference Between Kamoos and Rothrock

The court in Rothrock specifically distinguished the facts of that case from those in Kamoos. According to the court, the testator's son in Rothrock was a successful oil and gas attorney, not someone lacking in financial resources like the testator's widow in Kamoos. As a sophisticated oil and gas attorney, the son likely was aware of the risks involved with failing to probate his father's will within four years and should have taken action to eliminate those risks and reduce any unexpected contingencies by submitting his father’s will to probate. By not doing so, the son failed to exercise reasonable diligence.

Lessons of Kamoos and Rothrock

The primary lesson from Kamoos and Rothrock is that it is wise for the beneficiary of a will in Texas to submit the will to probate within the four year statute of limitations period. If the period expires, a court will evaluate whether the beneficiary exercised reasonable diligence, looking particularly at the financial means and level of sophistication of the beneficiary seeking to probate the will after four years.