Everyone Deserves a Second Chance — Late-Filing a Will as a Muniment of Title and the Kuhr Decision

Under Texas probate law a will generally must be filed for probate within four years of a testator’s death.[1]  Otherwise, the testator’s estate will pass under the rules of intestate succession regardless of whether a will was in existence.  However, if an applicant is not in “default” for failing to probate a will within four years, the will may still be offered for probate using a unique Texas mechanism known as a “muniment of title.”[2]  Probating a will as a muniment of title means to probate a will quickly and cost-effectively when there is no debt (other than a lien on real estate) and there is no need for a formal administration of the estate.[3]  Whether a will should be admitted to probate as a muniment of title lies largely within the discretion of a probate court, and appellate courts will defer to that decision.  The probate court’s decision will only be set aside if there is a clear abuse of discretion (i.e., the court acted “arbitrarily or unreasonably, without reference to any guiding rules or principles”).[4]

As noted above, you can only take advantage of this late-filing probate mechanism if you are not in “default,” under the Texas Estate Codes.  However, the term “default” is not defined in the Code, and whether a party is in default is therefore ripe for debate.  Texas courts have historically defined “default” as the failure to probate a will because of an absence of “reasonable diligence” by the party offering the instrument.[5]  The burden is on the applicant to demonstrate that they are not in default for failing to timely present a will for probate.[6]  Although the degree of “default” is a question of fact, Texas courts are liberal in permitting a will to be offered as a muniment of title after the four-year limitation period has expired.[7]  Although ignorance of the law is no excuse, Texas courts seem cognizant of the fact that probate is a confusing process for the average grieving applicant.  In fact, merely believing that probate was unnecessary has been found to be a sufficient excuse.[8]  

In Kuhr v. Smith[9], The Austin Court of Appeals was tasked with determining whether an applicant was in “default” for failing to present a will for probate within four years.  The (simplified) facts are as follows.  Terry Smith (the “Decedent”) died July 20, 2014, leaving behind Ronald Smith (“Smith”), the Decedent’s husband, and McKenna Kuhr (“Kuhr”), the Decedent’s daughter from another relationship.  The Decedent left a 2005 will (the “Will”) designating Smith as the sole beneficiary.  In 2016, Smith signed leases with an oil and gas company (the “Company”) concerning non-producing mineral interests that Smith would have inherited pursuant to Decedent’s will.  The Company made bonus payments to Smith in early 2018 but notified Smith in August 2019 that although the Will had been filed in earlier estate proceedings, it had never been properly admitted to probate.  This prior probate action is important to the Court’s analysis below, and in October 2019 Smith re-filed the original copy of the Will along with an application to admit the Will to probate as a muniment of title.[10]

Kuhr (who absent the Will stood to inherit a portion of the suddenly valuable producing minerals) contested Smith’s application to probate the Will, arguing that Smith failed to present the Will for probate within four years of the Decedent’s death.  The probate court ultimately granted Smith’s motion for summary judgment, determining as a matter of law that the Will was presented for probate on or before the fourth anniversary of the Decedent’s date of death, therefore avoiding default.[11] Kuhr appealed, arguing that: (i) the Will was not presented for probate within four years of the Decedent’s death; (ii) Smith should have been required to prove that he was not in default for failing to probate the Will as required by Tex. Est. Code § 256.003(a); (iii) Smith was in fact in default; and (iv) the probate court should not have admitted the Will to probate as a muniment of title.[12]

The Court of Appeals began by considering whether the will was “presented” within four years of the Decedent’s death.  At issue was whether the previous timely-filed action, although closed, had effectively “presented” the will for probate within the four-year period.  The Court relied on Ross’ Estate v. Abrams,[13] which explained that “probate” is the “act or process of proving a will” and that the phrase “present for probate” is synonymous with the phrase “file for probate.”  The Kuhr Court thus decided that the Will had technically been “presented” in the prior action within the four-year period.  The Kuhr Court further held that the lower court did not err in admitting the Will to probate without requiring Smith to prove that he was not in default.  The Court reasoning was that this was essentially a “continuation” of the prior probate proceeding.[14]

Even though the question of “default” is irrelevant once a will is determined to be timely filed, the Court of Appeals provided an analysis of what would have happened if the will had not been timely presented.  Kuhr argued that Smith’s failure to present the Will for probate was Smith’s own fault, and that Smith’s only evidence was his “alleged mistaken belief” that the Will had been probated, along with his “unfamiliarity” with the probate process.  The Court discussed at some length what behavior is acceptable and excusable when determining whether an applicant is in default.  The Court then considered whether Smith’s alleged mistaken belief was admissible evidence that Smith had, in fact, believed the Will was properly probated.  Following some superficial analysis, the Court of Appeals noted a probate court should be the sole determiner of an applicant’s credibility.  Because Smith was found to be credible by the probate court and there was no clear abuse of discretion, there was no reversible error.[15]

Finally, the Court addressed the admission of the Will to probate as a muniment of title and held that the probate court acted within its discretion in admitting the Will under Tex. Estates Code § 257.001.  Citing McGaillard v. Kuhlmann[16], the Court noted that unchallenged findings of fact are binding on an appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding.  The Court again applied the deferential abuse of discretion standard in upholding the probate court’s conclusion that the Will should be admitted as a muniment of title.

In Kuhr v. Smith, the Austin Court of Appeals emphasized that, while mere ignorance of the law does not excuse an applicant’s failure to file probate proceedings within the four-year period following a decedent’s death, the Court will entertain an applicant’s reasonable mistaken belief that a will has been probated.[17]  This case serves as a reminder that Texas Courts are lenient when admitting a will for probate as a muniment of title, and that the appellate courts will defer to the probate court’s discretion.

[1] Tex. Estates Code § 256.003

[2] Tex. Estates Code § 257.001

[3] In re Estate of Jackson, 2017 Tex. App. LEXIS 8001, at 9.

[4] Id.

[5] See Ramirez v. Galvan, 2018 Tex. App. LEXIS 222, at 3 (Tex.App.—Austin Jan. 10, 2018, no pet.)

[6] Id., at 4.

[7] In re Estate of Allen, 407 S.W.3d 335, 339 (Tex.App.—Eastland 2013, no pet.)

[8] See Id.

[9] 2022 Tex. App. LEXIS 2888.

[10] Id. at 3.

[11] Id. at 4.  Note that this ruling turned on the very specific facts of this case

[12] Id. at 5.

[13] 239 S.W. 705, 705-10 (Tex. Civ. App.—San Antonio 1922).

[14] Kuhr v. Smith at 10.

[15] McGaillard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

[16]McGaillard v. Kuhlmann at 697.

[17] Id. at 12.

Authors: D. Bradley Gibbs and Isabel Huntsman