Probate law & the statute of limitations

Written by russell huebsch
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Probate law & the statute of limitations
Probate law often involves property claims. (Image by Flickr.com, courtesy of Jeff Turner)

Probate law, commonly known as estate law, almost always contains a provision for a statute of limitations on a probate. Statutes of limitations have been in use for hundreds of years, although the exact time frame differs from state to state and country to country. Even if the statute of limitations passes, several exceptions exist to extend probate deadlines.

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Identification

Probate law establishes the legal transfer of property to the next of kin after a person dies, including any applicable estate taxes, according to FreeAdvice Law. When a written will exists, probate law is still applicable and allows for such things as protesting the veracity of a will. Statute of limitations requires that an attorney or interested party file a will within a certain time of death of the deceased.

History

The first evidence of a statute of limitations occurred in early Roman law. However, it was not until 16th century English common law that a statute of limitations was used for property inheritance and probate law, according to Encyclopedia Britannica.

Considerations

All states in the United States have some form of probate law, including a statute of limitations, but not all of them adhere to the same rules and regulations, according to FindLaw's estate page. Twenty states participate in the Uniform Probate Code, which offers a standard package of probate laws that simplifies bequeathing wills and estates. In the other 30 states, probate law might have a different name and regulations.

Types

One other type of statute of limitations exists within probate law other than the filing time limit: the time limit on contesting a will. In Texas, the contestant has two years to contest a will, according to Texas attorney Paul Premack. Two exceptions exist to the statute of limitations of a will protest. A protest based on suspected forgery extends the statute of limitations two years in most cases. Also, an incapacitated person named in a will usually gets an extra two years, more if they are minor waiting to turn 18.

Exceptions to Filing Limitations

An executor in the United States has four years to file a probate. However, the courts allow exceptions for this time limit, called "default." For the courts to consider a probate not in default, the person filing for the probate must demonstrate that they attempted to file a probate, but couldn't. Other common exceptions to the statute of limitations involve finding new assets or extremely long periods of time that demonstrate a lack of knowledge of probate law, according to Premack.

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