Co-author Brittany Blakey

 In re: Estate of Robert Scott Masters, Deceased reveals the price to be paid for failing to timely admit a will to probate or as a muniment of title.

Know this about Texas probate law

The Estates Code requires that a will be submitted for probate (or as a muniment of title) within four years of the testator’s death. After that period, a will may still be probated or filed so long as the proponent is not in “default” for failing to act timely.  In the statute, “default” means failure to probate a will because of the absence of reasonable diligence.

A person having custody of a will is charged with knowledge that it must be filed for probate within the statutory period, whether he knows it or not. Ignorance of the law is no excuse for failure to comply. A person with custody of a will who refrains for the statutory period from presenting it for probate under the assumption that his title to property is safe without it is in default.

Case law liberally permits a will to be offered as a muniment of title after the four years has run. In some cases a proponent’s belief that probate was unnecessary, when coupled with other specific facts, has been adequate to avoid a default.

The facts of the case

  • Prior to his passing, Robert Masters lived with Kippy Bailey as domestic partners, but Masters was on the deed as the sole owner of the house.
  • In 2007, Masters executed a holographic will that bequeathed the house to Bailey.
  • Masters died in 2012 and Bailey discovered the will about a day after. The will named Bailey as executor.
  • Bailey distributed specific gifts to individuals named in the will without probating it.
  • Bailey continued to reside at the house, pay property taxes, and maintain the house.

Bailey applied to probate the will six years after Masters’ death. In response, Masters’ potential heirs filed a small-estate affidavit.

Bailey did not refute the claim that he failed to file the application timely. Rather, he said, the issue was whether he proved that he was not in “default”. Bailey explained that he did not attempt to file the will because, among other reasons, he did not know that the will had to be admitted to probate until he spoke to an attorney and realized that title to the house did not automatically pass to him through the will.

The result

The trial court denied Bailey’s application and approved the heirs’ small-estate affidavit. Bailey appealed. The appellate court upheld the trial court for several reasons:

  • Although Bailey and Masters resided together in the house, they were never legally married;
  • Bailey had experience with land titles, having conveyed and received title to real property earlier in his life;
  • Bailey had exclusive possession and control over the will in the years prior to filing his application; and
  • There was no evidence that Bailey had legal title to the house.

Bailey argued that the trial court’s approval of the small-estate affidavit was “wrong and unjust”; he has resided in and maintained the house since Masters’ death and that he would likely lose possession if the affidavit was upheld. But Bailey offered no legal authority for the court to grant him homestead rights and he lacked standing to challenge the affidavit. Bailey was not the executor of Masters’ will, and the record did not show he had any other interest in the estate.

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