A lot of people think a will does its job the moment someone dies. The will says the house goes to you, so the house is yours. You keep living there, paying the taxes and fixing the roof, and nobody says otherwise. Then years later you try to sell, refinance, or hire a contractor, and you find out the house is still in the dead person’s name.
At that point the question is whether it’s too late to fix. In Texas, a will generally has to be offered for probate within four years of the testator’s death. After that, the will can still be admitted, but only if the person offering it proves he was not “in default” for waiting. Not knowing the law usually isn’t enough.
In the Matter of the Estate of Robert Scott Masters, No. 08-20-00156-CV (Tex. App.—El Paso July 20, 2022), shows how strict that rule can be. A man waited more than six years to probate his late partner’s will as a muniment of title, and the court had to decide whether his honest belief that the will had already transferred the house excused the delay.
What Happened in Masters?
Robert Scott Masters and Kippy Bailey lived together as domestic partners in a house in San Angelo. They were never legally married. Masters was the only owner on the deed. In 2007, Masters wrote a holographic will, entirely in his own handwriting, leaving the house and other personal property to Bailey. The will also made specific gifts of personal property to other people, including Masters’ mother, and named Bailey as executor.
Masters died on December 13, 2012. Bailey found the will about a day later and kept it to himself for the next six years. He handed out the specific gifts the will called for, but he never tried to probate it. He stayed in the house, paid the property taxes and utilities, and kept the place up. In 2018 he had “c/o Kippy Bailey” added to the tax records, which still listed Masters as the sole owner. Bailey later testified that he thought he owned half the house.
In late 2018, Bailey wanted some work done on the house. The contractor asked for a copy of the deed, and that’s when Bailey learned he didn’t have legal title. He saw a lawyer about a month later and was told the will had to be probated before the house could pass to him. On March 27, 2019, more than six years after Masters died, Bailey applied to probate the will as a muniment of title in Tom Green County.
Masters’ potential heirs, including his mother, Laura Ann Masters, opposed the application. They claimed the estate under Texas intestacy law and filed a small estate affidavit. Their argument was simple: Bailey knew about the will and didn’t file it within four years.
At the hearing, Bailey admitted he missed the four-year deadline. His explanation was that he didn’t know a will had to be probated and believed the will itself transferred the house. On cross-examination he denied owning any other real estate. The heirs’ lawyer then showed him deed records for property deeded to him after his own mother’s death, and for another property where he served as the go-between in a deed transfer between relatives. The trial court denied Bailey’s application and approved the heirs’ small estate affidavit. Bailey appealed.
So the case came down to one question: was Bailey’s mistaken belief about the will a good enough excuse for waiting six years?
How Does the Four-Year Deadline Work for a Muniment of Title?
To understand why the delay mattered, we first have to look at what a muniment of title is. Normally, probate means a court appoints an executor who collects the assets, pays the debts, and distributes what’s left. A muniment of title skips all that. Under Section 257.001 of the Texas Estates Code, a court may admit a will to probate as a muniment of title if the estate doesn’t owe any unpaid debt other than debt secured by a lien on real estate, or if there’s some other reason no administration is needed. No executor is appointed. The will and the court’s order admitting it become the record that shows who owns the property. It’s cheaper and faster, which is why it’s popular for estates where the main asset is a house.
The catch is timing. Section 256.003(a) says a will “may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.” The muniment of title chapter has its own version of the deadline. Section 257.054(2) requires the applicant to prove that “four years have not elapsed since the date of the testator’s death and before the application.”
Notice what’s missing from Section 257.054: it has no express default exception. The court pointed out in a footnote that this gap may have been an unintended result of the codification of the Estates Code. Neither side raised the issue, so the court assumed, without deciding, that the default exception could apply to a muniment of title. That’s an open question worth knowing about if you’re filing late.
“Default” has a specific meaning here. Quoting the Austin court in Ramirez v. Galvan, the court explained that “‘default’ means failure to probate a will because of the absence of reasonable diligence by the party offering the instrument.” The person offering the will has the burden to prove he was not in default, and whether he was is usually a fact question for the trial court.
Texas courts are tough on ignorance of the law. As the court put it, “A person having custody of a will is charged with knowledge that it must be filed for probate within the statutory period in order to rely on it, whether the necessity for doing so is apparent to him or not.” And “A person who has custody of a will and refrains for the statutory period from presenting it for probate for personal considerations or under the assumption that his title to property is safe without it is in default.”
At the same time, the court noted that Texas case law “liberally permits a will to be offered as a muniment of title after the four-year limitation period has expired.” The way courts reconcile those two ideas is this: a belief that probate wasn’t necessary can excuse a late filing, but only when something else backs it up. The court listed examples. In In re Estate of Allen, the proponent wasn’t in default because her belief was based on her attorney’s erroneous advice. In Kamoos v. Woodward, she had limited financial resources and didn’t think probate was necessary given the nature of the estate. In In re Estate of Perez, an earlier El Paso case, the proponent had limited money, limited education, and believed an attorney had taken care of things. In Chovanec v. Chovanec, a fact issue existed where third parties kept paying the proponent mineral royalties without questioning his title. And in Matter of Estate of Hammack, a lack of resources plus not knowing probate was required was enough to defeat summary judgment.
Why Bailey Lost Even Though a Similar Husband Won
The case had been transferred to El Paso from the Austin Court of Appeals, so the El Paso court applied Austin precedent. That made Ramirez the key comparison, and on the surface it looked like a winner for Bailey.
In Ramirez, a husband and wife bought a house together. Her will named him executor, made some specific gifts, and left him the rest, including her interest in the house. He paid her debts, gave away her personal items as she wanted, and kept living in the house and paying the mortgage, assuming nothing more was needed. About six years later, when he tried to sell, he learned he needed to probate the will, and he promptly hired a lawyer and filed. The trial court found him in default. The Austin court held the evidence was legally sufficient to support that finding, pointing to his six years of exclusive control of the will and his experience with immigration and divorce proceedings and with buying the house. But it reversed anyway, holding the default finding was against the great weight of the evidence. The husband had started handling his wife’s affairs right away, believed her wishes had been carried out, lived in the house thinking he was the sole owner, and moved quickly once he found the title problem. The court also noted he was an immigrant from Veracruz whose first language wasn’t English and who needed a translator to testify.
Bailey’s story was close: he lived in the house, paid the bills, handed out the gifts, and filed within a few months of learning about the title problem. But the court held there was legally sufficient evidence of default. Bailey had exclusive control of the will for years, he understood how land titles work, and unlike the husband in Ramirez, he never had any legal title to the house.
Then the court took up factual sufficiency, the argument that actually won in Ramirez. The trial judge had already distinguished Ramirez in two ways. First, the husband there owned half the house because he and his wife bought it together. Second, the judge found that Bailey “knows about deeds” and “understands property is transferred by deed, not just because somebody says it in a Will[.]” The deed records from cross-examination backed that up.
The appeals court agreed that Ramirez “stands on a different footing.” The court explained: “A person with undisputed legal title to an undivided interest in property might feel safe residing there, but a person with no legal title would enjoy no similar assurance.” Bailey’s experience with deeds meant he should have appreciated the importance of title. And nothing in the record showed he faced anything like the language barrier in Ramirez.
That left Bailey with nothing but his belief. As the court put it, “In effect, the record only supports his belief based on ignorance of the law, which by itself cannot support a finding of a lack of default.” The trial court’s default finding stood.
Losing on default also sank Bailey’s challenge to the heirs’ small estate affidavit, the shortcut Chapter 205 of the Estates Code provides for small intestate estates. Bailey asked the court to give him the homestead rights of a surviving spouse so he could stay in the house for life, but he cited no legal authority for that. And because the will was never admitted, Bailey was not the executor and had no other interest in the estate, so he lacked standing to challenge the affidavit. The court affirmed both orders.
The Takeaway
Masters shows that the four-year deadline has real teeth. A late filing can still be saved, but the excuse has to be more than simply not knowing the law. Courts look for something outside the proponent’s own assumption: bad advice from a lawyer, limited money or education, a language barrier, an existing ownership interest in the property, or third parties treating him as the owner. Without one of those, an honest mistake about the law usually counts as default. And what a proponent knows matters. Bailey’s past experience with deeds hurt him badly.
If you’re holding an unprobated will, don’t wait. File within four years of the death, even if you think the will already took care of things. If the four years have already passed, gather the facts that explain the delay before you file, and be ready to prove them. If the will can’t be probated, the property may pass to the heirs under intestacy instead of the person the will named, which is exactly what happened here. Unmarried partners are especially exposed, because Texas intestacy law gives an unmarried partner nothing. Without a valid, probated will, the property goes to the family.
Our San Antonio Probate Attorneys provide a full range of probate services to our clients, including helping with probating a will as a muniment of title, including wills filed after the four-year deadline. Probate is what we do. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE consultation.
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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
