Understandable Guide to Contesting a Will

TexasInheritance.Com

 

Contesting Texas Wills

An Understandable Guide to Inheritance issues in Texas

Frequently Asked Questions

Claiming an inheritance, Contesting a Will, claims against fiduciaries, or filing an heirship in Texas require that you be an "interested party." That term has a specific, legal meaning. The Texas Estates Code defines the term “interested party” as “an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered.

When you are forced to obtain your inheritance from someone because they are trying to keep you from your rightful inheritance, you have to retain an inheritance attorney. The cost of these inheritance disputes is expensive; however, while many attorneys won’t agree to contingency fees for an inheritance dispute, we handle a select few cases on a contingency basis.  Click this text for more information. Basic Rule: In general, a Texas will contest must be filed within two years from the date the will is admitted to probate, not two years from death. If you are not contesting a will but just trying to obtain your inheritance, the statute of limitations may give you more time. The question is more complicated that you might think. You can click this link to get a general overview of your rights under Texas inheritance laws. Follow our blog.

Understandable Guide to Contesting a Will

TexasInheritance.Com

by Robert A. Ray

 

 

The most common reason for contesting a will is that the testator did not have testamentary (mental) capacity.

Another common reason for contesting a will is undue influence that causes the testator to make a will he would not have made.

A will has to be executed with the formalities required by the Estates Code. Improper execution may void a will.

Contesting a Will is Not About Greed

An inheritance is your property. Someone else may have custody and control of your property but it is still yours. It is not greedy or unseemly to want custody and control of your porperty.

As tragic as it is, abuse against our eldersis 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.

I have written a blog post titled "How do I claim my inheritance in Texas?" You can review that post then come back to this page.

How Contesting a Will Works

If a person makes a will when he or she does not have the mental capacityto do so, or when they are under the controlof 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 limitationsfor 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 representyou.
3. You have to act before the statute of limitationsruns.
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 dividedwhen 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:

Executionand 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:

• Lost wills
• Effective date of will
• Obtaining copies of wills.
• Revoked willsand here.
• Where is the will signed?
• Contracts to make wills.
• Beneficiaries as witnessesto will.
• Lawyer who prepared will as beneficiary.
• Replacing pages in will.

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 doif 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 doif 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:

• Beforethe will is admitted to probate.
• Afterthe will is admitted to probate.
• When a new willis 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 dividedwhen no will has been left behind.

Robert Ray

Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. We handle cases all across Texas. Our principal office is in Lantana, Texas (DFW area).

Why Us?

Inheritance disputes involve someone who has taken advantage of the elderly. These cases are complicated and most often, but not always, involve outsiders. We represent you knowing that these inheritance disputes are private and painful family matters. We know this is a stressful time for you. We strive to obtain the quickest and best results possible so that you can get this troubling episode behind you.

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Robert Ray

Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. We handle cases all across Texas. Our principal office is in Lantana, Texas (DFW area).

Why Us?

Inheritance disputes involve someone who has taken advantage of the elderly. These cases are complicated and most often, but not always, involve outsiders. We represent you knowing that these inheritance disputes are private and painful family matters. We know this is a stressful time for you. We strive to obtain the quickest and best results possible so that you can get this troubling episode behind you.

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This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney–client relationship. These matters turn heavily on specific facts and specific dates, and the law has exceptions this page does not cover. You should not take, or refrain from taking, any action based on this page. Discuss your circumstances with an attorney who can advise you on them.