Who Can Contest a Texas Probate?

Who Can Contest a Texas Probate?

Who Can Contest a Texas Probate


In order to contest a Texas probate, you have to have standing. Standing means a person has a right to bring a lawsuit in Texas. To have standing in a Texas probate proceeding, you have to be an interested party.


In a recent case out of the Fort Worth court of appeals, the issue of standing was the central issue. 02-21-00290-CV. In this case, a man died in an accident. His common-law wife, Ms. Pachecano, had three suits; a worker’s compensation case, a wrongful death and survival action, and a probate case seeking to be appointed administrator of the husband’s estate. In the worker’s compensation case, the insurance company balked because of the alleged common-law marriage. Ms. Pachecano settled the worker’s compensation case to get the proceeds for her children. She signed papers that she was not a legal beneficiary.

When Ms. Pachecano filed the probate case to be appointed administrator of her husband’s estate, the defendant, Jackson, intervened in the probate case. Jackson claimed that because Ms. Pachecano had said in the worker’s compensation case that she was not a legal beneficiary, she couldn’t participate in his probate case—the probate court denied Jackson’s intervention. Jackson appealed. Ms. Pachecano did not challenge Jackson’s standing to be involved in the probate case until after he appealed.


The court of appeals affirmed the trial court, stating:

Because Jackson was not an interested person, Ms. Pachecano’s argument continues that Jackson lacked standing to intervene in the heirship proceeding that she filed. We agree that the question of whether a person is interested implicates standing. As explained below, Jackson as a defendant in a wrongful-death and survival action is not an interested person in an heirship determination; thus, Jackson lacked standing to intervene. Further, Jackson’s arguments regarding why it had standing—whether an interested person or not—are unpersuasive.

Ms. Pachecano did not challenge Jackson’s standing to intervene in the probate court. That failure, however, is not a waiver of a jurisdiction-based contention, such as standing.

Read About A Muniment Of Title In Texas

Read About A Muniment Of Title In Texas

Muniment of Title means to probate a will quickly and cost-efficiently when there is no need for administration of the estate. A court may probate a will as a Muniment of Title if the court finds that the will should be admitted to probate, that there is no need for an administration, and that there are no unpaid debts of the estate other than liens on real estate. One of the purposes of this limited form of probate is to provide continuity in the chain of title to estate properties by placing the will on the public record.

In normal probate where an executor is appointed and files his oath, Letters Testamentary are issued by the clerk to the ExecutorLetters Testamentary are the documents that show that the Executor has been duly appointed and is the legal owner of the estate’s property. Legal ownership needs to be distinguished from beneficial ownership. The beneficial owners are the persons named in the will to receive the property. The Executor is the legal owner which gives him the right to gather all of the assets of the estate to distribute to the beneficiaries. The Letters Testamentary are required by many financial institutions before they will release accounts belonging to the decedent. Letters of Administration are the exact same thing but are issued when an Administrator is appointed rather than an Executor. An Administrator is appointed when there is no will. Filing a will as a Muniment of Title can make the probate process easier if no administration is necessary and no debts are owed by the estate.

Find Out Who is an Interested Party for Probate Purposes?

Find Out Who is an Interested Party for Probate Purposes?

The Texas Probate Code defines “interested persons,” in relevant part, to be: children, heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered . . .” In order to contest a will, you must be an “interested party.”

The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will. That means you must have a financial interest. An interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient. For instance, if you are a neighbor and you see that an undeserving child seems to be ending up with all of the property of their parents or grandparents, there’s nothing that you can do because your interest is not pecuniary. It is just altruistic. The only thing that you can do is to notify an interested party of your concerns. If they are not interested in contesting the will, there’s nothing else for you to do.

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Can you contest a will if you accepted benefits?

Can you contest a will if you accepted benefits?

Update 2021

The Texas Supreme Court has ruled on the issue of accepting benefits. This is the current ruling on accepting benefits and contesting the will.

Can you contest a will after accepting benefits?

In Estate of Johnson, 20-0424, ____ S.W. 3d ___,  (Tex. May 28, 2021), a daughter accepted a mutual fund valued at over $100,000 that she was given under the will. She later contested the will. The trial court dismissed her contest for lack of standing because she had accepted benefits under the will.  She appealed.

The daughter argued that the benefit she accepted, the mutual fund, was worth less than what she would receive if the will contest was successful ($400,000+.) The Supreme Court upheld the trial court dismissing the contest because she lacked standing after accepting benefits. This is called the acceptance-of-benefits doctrine. If you accept benefits under a will, you can’t contest the will unless your attorney knows how to handle this situation.

The Supreme Court said “a contestant does not defeat an acceptance-of-benefits defense by showing that the benefit she accepted is worth less than a hypothetical recovery should her will contest prevail…Equity does not permit the beneficiary of a will to grasp benefits under the will with one hand while attempting to nullify it with the other.”

Does this case mean that if you ever accept benefits under the will that you can never contest it? No, it doesn’t mean that if your attorney knows how to advise you. So, if you have accepted benefits and decide that you need to contest the will, you will need to find an attorney who can guide you through the process. Remember, you need to act quickly if this should happen.

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Can you probate a will after four years?

Can you probate a will after four years?

Can you probate a will after four years?

A will has to be filed for probate within four years of the testator’s death. After four years, a will can be filed as a muniment of title but only if the person filing the will is not “in default.” When a late-filed will is opposed, the issue is usually concerned with whether or not the person filing the will late was in default.

In a case on this issue decided in 2011, the testator had children by a prior marriage. His wife had children from a previous marriage. He executed a will leaving everything to his wife if she survived him. The testator died in 2002. His wife probated no will. Six years later, she died. While going through her papers, her children found the will. Although it was more than four years after the testator died, the wife’s children filed the will for probate. A daughter from the testator’s first marriage contested the probate, contending that the wife’s children were in default for not filing it within four years. (If the testator died intestate, his children from the prior marriage would inherit his property, not the wife.)

The Court sided with the wife’s children. It ruled that her children were not in default just because the wife was in default for not filing the will within four years. They testified that they were not aware of the will until after their mother had died. The Court said that if they didn’t know about the will and were not negligent in finding it, they were not in default. 343 S.W.3d 899.

In a 2013 case, the wife didn’t file the will within four years. An attorney told her that she didn’t need to file it; she could just file an affidavit of heirship. The wife did not know that such an affidavit would not pass the husband’s separate property to the wife. A dispute arose between the wife and a son. The son claimed that the separate property belonged to the children because the wife did not probate the will within four years. He claimed that it was now too late to probate the will. The issue turned on whether the wife was “in default” for not filing the will within four years. The court ruled in favor of the wife. There are several cases where the courts have found that evidence that a proponent relied on counsel’s advice was sufficient to support a finding that the proponent was not in default or raise a material fact question of whether the proponent was not in default.  No. 11-11-00131-CV.

While the Texas Estates Code requires that a will has to be filed within four years of the testator’s death, a will can still be filed after that time if the person filing the will was not “in default” in not filing within four years. Texas courts are pretty liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon showing an excuse by the proponent for failure to offer the will earlier.

Update: in 2019, the Texas Supreme Court settled the issue of who is “in default.” The test now applies only to the applicant who filed the will for probate. If the applicant is not “in default,” the will can be admitted to probate. It doesn’t matter whether or not the applicant’s predecessors were “in default. ” You can read more about that case here. 17-0901.

Update: On April 29, 2022, the Austin court denied probate to a will filed more than four years after the testator’s death. 03-20-00449-CV. But, on May 6, 2022, the same court upheld a will being admitted more than four years after death. 03-21-00081-CV. In the last case where the will was admitted, the widow testified that she went to a lawyer who told her she did not need to probate the will and, as soon as she learned about the need to probate it, immediately took steps to get it probated. The difference between the two cases shows what evidence is necessary to establish a lack of default when a will is probated more than four years after death.

Update: In 2022, the El Paso court upheld the trial court’s finding that the applicant was in default. No findings of fact and conclusions of law were requested so the appeals court had to assume that the evidence supported the trial court’s ruling. It distinguished a prior similar case where the applicant was held not to be in default by noting that the applicant never had an interest in the property, was familiar with land transactions because he had bought and sold some property before, and he spoke English. It is also worth noting that the court mentioned that the applicant, a male, was the “partner” of the decedent, a male. The court even cited the Obergefell ruling. Did that influence the ruling?

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