Court Refuses to Admit Will as Muniment of Title

Muniment of Title is a popular alternative to the traditional full probate procedure for administering an estate in The Woodlands. However, in order for your Woodlands Probate Lawyer to take advantage of the Muniment of Title procedure the estate must meet certain requirements. One requirement is that the application for Muniment of Title is filed within 4 years of the date of death. If you wait until after four years you open a can of worms and risk the court refusing to admit the Will to probate. If the court does not admit the Will to probate, the estate is intestate. This can be a big deal in cases where the distribution plan in the Will does not follow the intestate distribution plan. Let’s take a look at what the Court of Appeals had to say about Jerry Rothrock.


In 1986, Everett H. Rothrock, Jerry’s father, signed a will appointing Jerry as the independent executor of the will and naming him as the sole beneficiary of the estate. Everett died on June 5, 1994. In September 2008, Jerry was notified by an oil and gas landman that Everett owned mineral interests in Cherokee County, Texas. On October 6, 2008, Jerry filed an application to probate Everett’s will as a muniment of title.

At a hearing on the application, Jerry testified that he and his five siblings agreed they did not want to probate Everett’s will. He stated that he requested two cameras, which were the only property he wanted from Everett’s estate. None of his siblings objected. Jerry testified that, in gathering Everett’s assets between 1985 and 1986, he investigated whether Everett owned any land. According to Jerry, Everett told him that he had sold all of the real property he had received from his parents and that he did not have any real property left. Jerry stated that Everett never talked about any mineral interests. Jerry’s grandmother told him that she had given all her real property to her sons, Everett and his brother, and that “she was convinced” her sons had lost all their real property. After Everett died, Everett’s brother told Jerry that he and Everett had received a substantial amount of real property from their parents and that both of them had sold it or “gotten rid of it in some way.”

Jerry also testified that he “was a very successful lawyer in Washington, D.C.” and that about half of his practice dealt with oil and gas law. On cross examination, Jerry admitted that, at the time of his father’s death, he knew there could be separate ownership of the surface and mineral estates in Texas. At the conclusion of the hearing, the trial court denied Jerry’s application to probate Everett’s will as a muniment of title, stating that by filing the application thirteen years after Everett’s death, he was in default under section 73 of the Texas Probate Code. Jerry filed this appeal.

Default under Section 73 of the Texas Probate Code

In his sole issue on appeal, Jerry argues that the trial court erred in determining that he was in default under section 73 of the Texas Probate Code by not filing his application to probate Everett’s will as a muniment of title within four years of Everett’s death.

Applicable Law

Section 73(a) of the Texas Probate Code states as follows:

(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.

One purpose of the statute is to impose a reasonable limit on the time in which the property of a person dying testate should be distributed among his legatees, after payment of his debts. The statute also gives all persons interested in the testator’s estate an early opportunity to contest the will by living witnesses. Further, the policy of the law is to enforce the timely probate of wills. 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. Unexpected events often happen and a person’s present conclusions may be wrong. By complying with the requirements of the statute, a person is afforded a way, and the only way, to foreclose all contingencies; choosing not to resort to it amounts to willful neglect.

It cannot be said that one who has custody of a will, and refrains for the statutory period from presenting it for probate for mere personal considerations or under the assumption that his title to property is safe without it, is not in default under this statute. Default means “a failure due to the absence of reasonable diligence on the part of the party offering the instrument.” The burden is upon the proponent of a will to show that he was not in default by not presenting a will for probate within the proper time. Family agreements to not to probate a will about which they had knowledge are not sufficient to excuse noncompliance with the four year limitation of the probate code.


Section 73 of the Texas Probate Code allows the probate of a will as a muniment of title after four years if it is shown that the proponent of the will was not in default in failing to present it for probate within four years. Because Jerry filed the application to probate Everett’s will, he had the burden of showing an excuse to justify his failure to timely probate the will. Jerry argues that he showed reasonable diligence. Further, he contends that he was not in default based upon a mistake of fact that Everett did not own any mineral interests.

The evidence shows that Jerry and his siblings agreed not to probate Everett’s will. Jerry requested, and received, two cameras, the only property he wanted from Everett’s estate. A family agreement is not sufficient to excuse Jerry’s noncompliance with the four year limitation. In other words, Jerry cannot rely on the agreement with his five siblings as an excuse for noncompliance with the statutory period and for making what was, in hindsight, the wrong decision. Jerry testified that Everett stated he did not own any real property, that his grandmother was “convinced” Everett lost all his real property, and that Everett’s brother stated that both of them had sold or “gotten rid of” all their real property. Although these statements may have persuaded Jerry that there was no reason to probate Everett’s will, it does not provide a legal excuse for his failure to do so. Therefore, considering all the evidence regarding Jerry’s informal investigation into whether Everett owned property, we cannot say that the trial court’s refusal to find that Jerry showed reasonable diligence was contrary to the great weight and preponderance of the evidence.

Moreover, having been a successful attorney with an oil and gas practice, Jerry should have known that unexpected events often happen in life. To foreclose any unexpected contingencies, a will must be probated within the statutory period whether the necessity for doing so is apparent or not. Because Jerry did not probate Everett’s will within four years after his death, relied upon a family agreement, and failed to show reasonable diligence, the evidence is factually sufficient to support the trial court’s finding that Jerry was in default. The trial court did not err in denying Jerry’s application to probate Everett’s will as a muniment of title.

Get Help Now is here to help you solve your probate matter in The Woodlands, TX or other communities in Montgomery County. If you need assistance, call Attorney Richard Shea at (832) 592-7913.