To be safe, probate will within four years

The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: I've read in your column a few times that there's a four-year limit for probating a will. On May 29 you wrote that a judge could allow an exception if you have a good explanation for the delay. Out of curiosity, what happens if the executor just procrastinated?

A: Texas law states that a will can be probated after four years only if the executor "was not in default in failing to present the will for probate on or before the fourth anniversary of the testator's death."

Fortunately, Texas courts are typically liberal in applying the "not in default" rule. For instance, if a will gets lost, or it is simply undiscovered for more than four years after someone's death, the courts will typically allow probate to proceed.

Also, when it is necessary to establish a link in the chain of title to a piece of property, courts will conclude that the executor was not in default for taking more than four years.

However, if all the heirs of a decedent agree not to probate the will, which sometimes happens, and then more than four years later they determine that probate is actually necessary, the courts may not be as forgiving.

In my experience, most excuses will work.

Many years ago, while in court, I heard an executor tell the judge that she didn't know there was a time limit to get the probate started, and that's why she waited 12 years. The judge found that excuse perfectly reasonable, and he let her go ahead with the probate.

What would happen in court today is unpredictable. Therefore, it is typically best to start the probate sooner than later, but for sure within the four year time-frame.

Q: Many lawyers have said writing your own will in Texas may not be the best thing. Is there any software program that would do the job if one does not have much money and just one or two real estate holdings?

A: Over the past few weeks, I've seen a handful of do-it-yourself wills prepared by people who didn't want to hire a lawyer. Each was a disaster in its own way.

All of these probates will likely be more complicated, and therefore more expensive and time-consuming, than if the deceased person had hired an attorney to prepare the document.

Importantly, even if you use a software product designed for use by the public, you still are doing it yourself and there's a good chance you will create more problems than you solve.

So the answer to your question is no, I do not know of any software that would be appropriate for you, as a non-lawyer, to use.