Who receives notice when a will is filed for probate in Texas?
When a will is filed for probate in Texas, the county clerk posts a notice on the courthouse wall. This notice provides constructive notice to the world that the will has been filed, and individuals should take necessary steps to protect their interests if any time limits or statutes of limitation apply.
However, a different rule applies when someone is a named beneficiary in the will. In that case, the executor or administrator must provide actual notice to the beneficiary that the will has been filed for probate. There must be something more than constructive notice.
Named Beneficiary
In a recent Texas case, the contestant did not file his will contest within the two-year statute of limitations for contesting wills, and his contest was dismissed, leading to an appeal. 12-22-00256-CV. The contestant argued that he was a named beneficiary and should have received actual notice of the probate. However, the appeals court disagreed.
Decision
The will listed the contestant as the son of the testator but stated that the testator had “already give my son…a 1985 Chevrolet Corvette for his inheritance of my estate.” Despite the poor grammar, the court determined that the testator meant “already given my son” his inheritance, indicating that the son was not a beneficiary under the will since he did not receive anything under the will.
Things to Note
When someone passes, it is the responsibility of the heirs to understand what actions are required. In some cases, close relatives are unaware of an individual’s passing for several years following their death. If an individual is not listed as a named beneficiary in the will, they will not receive any personal notification, making it crucial for individuals to keep themselves informed.
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 articleabout 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)
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.
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.
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.
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.
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.
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:
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.
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 blogwhere 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).
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.
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 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.
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
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.
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 herego to our article about what you need to know about successfully contesting a will
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