Challenging a Joint Account

Challenging a Joint Account

Background

When a person dies, his will determines who gets his property. If he doesn’t have a will, then the law of descent and distribution determines who gets his property. Pay on Death (POD) and joint accounts with right of survivorship are different.

Financial accounts like checking, savings, CD’s, brokerage accounts and retirements accounts are not probate assets and they are not part of the decedent’s property if they have a beneficiary designation. The beneficiary gets the account and they are not divided between the heirs. What happens if you think something is wrong and the decedent was taken advantage of and this type of account should go to probate and be divided among the heirs, not given to the beneficiary? This article will discuss that issue.

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Challenging a joint account

Paperwork is not in order

To challenge a POD or joint account with right of survivorship is not easy but there are ways to do it. The first thing to learn is whether or not the paperwork at the financial institution is in order. Texas requires specific words and forms to create such an account and if the paperwork is not in order, the account goes to the estate and not the beneficiary. Where the paperwork is not in order, you can challenge the account based on a fiduciary relationship between the beneficiary and the decedent or challenge the account based on the intent of the decedent to share the account with other beneficiaries. You can ask the probate court to determine who gets the money in the accounts. But what happens if the paperwork is in order?

Paperwork is in order

If the paperwork is in order, you can’t challenge the account based on a fiduciary relationship between the beneficiary and the decedent or challenge the account based on the intent of the decedent to share the account with other beneficiaries. Because the paperwork is in order, other evidence is not admissible to change the account contract.

What can you do? The account can be challenged based on the decedent’s lack of mental capacity to contract at the time the beneficiary designation was changed or added. This is similar to contesting a will based on lack of testamentary capacity. Filing the proper paperwork in the probate court, obtaining admissible evidence and presenting it in the proper manner to the court at the proper time is what needs to be done to challenge these accounts. 

Take away

If someone is claiming that they own a financial account because they were designated as a beneficiary, don’t take that on face value. Have your attorney look into the accounts and determine to whom they belong.

Disclaimer

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

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Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

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Learn About No Contest Clauses Or In Terrorem Clauses In Texas

Learn About No Contest Clauses Or In Terrorem Clauses In Texas

Contesting a will in Texas

What is a no contest clause

Many wills and trust have no contest clauses, also referred to as in terrorem clauses. These basically say that anyone who contest the will or trust looses their inheritance under the will or trust. People are afraid that they will get nothing if they contest the will. 

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Are no contest clauses enforceable?

Texas courts don’t like to enforce these forfeiture clauses if there is a reasonable way to avoid enforcement. Heirs getting nothing is not what courts want to see. There are only a handful of Texas cases that enforce these clauses. The majority of cases don’t enforce them. Many courts created a good faith exception. If a contest was brought in good faith, there was no forfeiture. In addition to the good faith exception, one court listed twelve items that do not trigger the forfeiture effects of a no contest clause:  (1) to recover an interest in devised property; (2) to compel an executor to perform duties; (3) to ascertain a beneficiary’s interest under a will; (4) to compel the probate of a will; (5) to recover damages for conversion of estate assets; (6) to construe a will’s provisions; (7) to request an estate accounting or distribution; (8) to contest a deed conveying a beneficiary’s interest; (9) to determine the effect of a settlement; (10) to challenge an executor appointment; (11) to seek redress from executors who breach fiduciary duties; and (12) presenting testimony in a will contest brought by other beneficiaries. 01-10-01019-CV.

The Texas legislature adopted the reasoning on good faith and recently updated the law on no contest or in terrorem clauses and the good faith issue.  The new law makes it easier to contest wills that have no contest provisions and voids in terrorem clauses in wills and trust if a contest of the will or trust was brought in good faith. In other words, even if the will provides for a forfeiture in the event of a will contest even one brought in good faith, the new legislation voids those provisions if the contest was brought in good faith. Because of this new law, your should not let the existence of a no contest clause in a will keep you from contesting a will if you are acting in good faith and with just cause. 

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Who and What we Are

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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Start here to Learn About Contesting Wills in Texas

Start here to Learn About Contesting Wills in Texas

Contesting Wills

If you have questions about how to challenge the will of a loved one for any reason this page will help you get started.

Contesting a Will is Not About Greed

As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will. See this article about abuse.

We know that this is a painful time for you, and you may be feeling guilty about your need to contest the will, but the first thing you need to know is that in most cases, disputing the legitimacy of a will is not about greed and that it is within your rights to call it into question.

When a new will is created due to this abuse that favors the abuser, often the only remedy is to file a suit contesting the will.

How Contesting a Will Works

If a person makes a will when he or she does not have the mental capacity to do so, or when they are under the control of another person, then the will can be disputed – or contested. When a will is contested, it is because the contestant doesn’t believe it is the true will of the person who created it (the testator).

In other words: if you don’t feel that this is the will your loved one wanted to write, then you may contest it.

In this article, we will give you everything you need to make an informed decision about what to do next, and what lies ahead.

We will cover:

  • What you need to do to contest a will (Procedure and how)
  • Grounds for contesting a will (Grounds)
  • Statute of Limitations for contesting a will (Time Limits)
  • What happens to the estate if the will is successfully challenged

How to Contest a Will

A general discussion of how to contest a will can be found here. Because of the time limits or statute of limitations for contesting a will and the fact that the estate may be depleted by others taking property from the estate, a will contest needs to be started as soon as possible.

 

We realize this can be a confusing, frustrating, and emotional process. Below, we have laid out the steps you need to take and how you can take them in order to make the process easier for you.

  1. You have to be an interested party.
  2. You need to hire an attorney to represent you.
  3. You have to act before the statute of limitations runs.
  4. Can I contest a will without an attorney?
  5. What happens when you contest a will?

Successful Will challenges?

If a will is successfully challenged, the court may then turn to his or her previous valid will if there is one to determine what should be done with the estate.

If there was no previous valid will, or if it has been lost, then the testator (the person whose estate the will is about) will be considered to have died intestate, or without a will.

At that point, the court will turn to laws that govern how an estate is divided when no will has been left behind.

 

Grounds for Contesting a Will

The law outlines several reasons to contest a will. Many of those reasons are listed below:

Execution and Form

The law is very strict about the form and execution of wills. A will may be set aside if it isn’t written or executed appropriately.

This usually happens because individuals create the will themselves, rather than through an attorney. There are times, though, that even an attorney does not ensure that everything is in order as far as the law is concerned.

Often, individuals will type out a will on their computer, download a form from the Internet, or copy a form from a book. If any mistakes are made during this process, the will can be set aside.

Additional information on execution and form:

Testamentary Capacity

Testamentary capacity, in essence, is the legal term to describe a person’s legal and mental ability to make, alter or revoke a will.

A person must have testamentary capacity in order for their will to be considered legally valid.

There may be a number of causes – both in legal and in psychological terms – that might diminish a person’s testamentary capacity, but the result of each is often the same: any wills they may have created while lacking testamentary capacity may be overturned.

Whatever the cause, it could mean that the will made in this condition doesn’t follow their true wishes.

Find out what to do if you believe your loved one wasn’t fully aware of their actions when they created their will.

Undue Influence

If a person is being controlled or dominated by another person so completely that they aren’t able to create their will according to their wishes, we call this undue influence.

Cases such as these might entail abuse or coercion or just a strong mind over a weak one. Keep in mind that this doesn’t always mean the abuse is physical. If a person is being coerced by emotional or verbal means, it could also be cause to contest the will.

What to do if you suspect undue influence.What to do if you suspect undue influence.

Forgery

A will can also be contested if you believe it to be a forgery – or written by anyone other than the person who was supposed to write it.

What to do if you suspect a forged will.

Sexual Assault or Sexual Abuse

A person who has been sexually assaulted or sexually abused by the decedent may be able to file a claim against the estate.

Time Limits for Will Contest

A will isn’t open to be contested forever. Contesting a will is limited to filing within a certain amount of time – what the law refers to as the statute of limitations.

You may be surprised to learn that the statute of limitations for contesting wills does not start at the time of death, but when the will is admitted to probate.

That means that if you feel a will should be contested, you must act quickly.

There are a few exceptions to this, such as when it comes to minors, or those who don’t know they are heirs.

Additional information on the statute of limitations for contesting wills:

  • Before the will is admitted to probate.
  • After the will is admitted to probate.
  • When a new will is found after another will has been admitted to probate

 Successful Will challenges?

If a will is successfully challenged, the court may then turn to his or her previous valid will if there is one to determine what should be done with the estate.

If there was no previous valid will, or if it has been lost, then the testator (the person whose estate the will is about) will be considered to have died intestate, or without a will.

At that point, the court will turn to laws that govern how an estate is divided when no will has been left behind.

 

The rest of this article is the old webpage that we had in place of the information that you just read. You can read it although you will see that it is generally a repeat of what has been said. The above information is an easier read and less lawyerly than the paragraphs below but they contain essentially the same information.

 

This article should be your starting point to learn about contesting wills in Texas. It provides general information about contesting a will. This general article will lead you to specific articles on the site and on our blog where you can find more detailed information about the particular question you have concerning will contests.

Contesting a Will is not about greed

Elder abuse is increasing. Often the abuse is by a friend or close relative, even a child. When the abuse involves creating a new will favoring the abuser or disinheriting the family completely or partially, the remedy is a suit contesting the will. If your family has found itself in one of these situations or if a will was made by someone not mentally fit to make a will, you will find information here that will help.

Background

When a person makes a will when he does not have the mental capacity to make a will or when he is so dominated by another that he can’t make the will that he wants to make, a will contest often results. A will is contested because the contestant believes that the will is not the true will of the testator. In other words, it does not represent the true intent of the testator to pass his estate to the people that are the natural objects of his bounty. In this general article, we will discuss reasons for contesting a will (Grounds), limitations for contesting a will (Time Limits), what you need to do to contest a will (Procedure) and what happens to the estate if the contest is successful (Effect of Successfully Contesting a Will).

Reasons for will contest

Execution and form

A will has to be in writing, in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution of a will involve wills that were prepared by individuals instead of attorneys. A person will type out a will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of wills, many of these wills are set aside because of mistakes in the form or because of improper execution.

Additional information on execution and form

  1. Order of signing wills.
  2. Lost wills
  3. Effective date of will
  4. Obtaining copies of wills.
  5. Revoked wills and here.
  6. Where is the will signed.
  7. Contracts to make wills
  8. Beneficiaries as witnesses to will.
  9. Lawyer who prepared will as beneficiary
  10. Replacing pages in will

Testamentary capacity

In order to make a will, the testator must have testamentary capacity. That means that he must know what he is doing and also know who the natural recipients of the estate would be. There are variations of testamentary capacity that may be referred to as insane delusion or mistaken in the factum. You can read about the evidence to prove an insane delusion here. The fundamental basis of these claims is that the testator did not have the mental capacity to know what he was doing when he made his will. Therefore, the will is not the will of the testator.

Undue influence

Undue influence means that the testator is so controlled and dominated by another that he can’t make his will the way he wants to but has to make it the way the person who is a dominating him wants him to make the will. Fraud in the inducement is just another type of undue influence.

Forgery

If a will is forged, it cannot be the will of the testator.

Additional information on forged wills

  1. Are forged wills good for something

General Statute of limitations for contesting wills

The time limits, what the law refers to as the statute of limitations, within which a will must be contested are determined by the probate process, not the date of death. In general, you have two years after the will is admitted to probate, not two years after the date of death, to contest it. The time starts to run from the date that the will is admitted to probate. There may be exceptions to this general rule relating to minors and those who don’t know they are heirs.

Additional information on the statute of limitations for contesting wills

  1. The time limits when the will is contested before it is admitted to probate.
  2. The time limits when the will is contested after it is admitted to probate.
  3. The time limits when a new will is found after another will has been admitted to probate

 

Procedure to contest a will

Because of the time limits or statute of limitations for contesting will and the fact that the estate may be depleted by others taking property from the estate, a will contest needs to be started as soon as possible.

Additional information on the procedure to contest a will.

  1. You need to hire an attorney to represent you.
  2. You have to be an interested party.
  3. What to do if there is a “no contest” clause in the will?
  4. Is an agreement not to contest a will valid?

Effect of Successfully Contesting a Will

When a will is successfully contested, the testator’s prior will is then considered “his will.” If there was no prior will or if it is lost and no one has a copy, the testator is treated as if he died intestate (without a will.) The court will then distribute the estate to those who would take on intestacy.

Click here go to our article about what you need to know about successfully contesting a will

Contesting a will in Texas

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Join the List

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

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Contesting a will in Texas

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