Texas Will Contest Lawyer
Transferring inheritance is not always a smooth process, even with a professionally created estate plan and careful preparation. In these situations, Marrs Ellis & Hodge LLP can help. Our attorneys are often recognized, including Joe Marrs’s “Top 100: Houston” designation in Texas Monthly magazine in 2022, “Best Lawyers in America” designation by BL Rankings since 2019, repeated “Super Lawyer” awarded to Joe Marrs by Thomson Reuters from 2016 through the present, and a “preeminent” AV rating by Martindale-Hubble recognizing Joe Marrs for over a decade.
What is a Will?
A will is a testamentary instrument disposing of a person’s property at his death. The will expresses the person’s “testamentary intent,” that is, how he wishes his affairs to be handled after his death and who he wants to benefit. Any writing—or even a verbal statement with witnesses—has the potential to be considered a will under Texas law if it meets minimal criteria. The person making the will is known as the testator.
To qualify as a will, a document must evince testamentary intent. Usually, a will begins with words to the effect of “this is my last will and testament,” removing any doubt. If the person’s intent is ambiguous, it may not qualify as a will. That means the document cannot be an expression of mere future desire, such as a letter to an attorney requesting that a will be drafted.
Execution of a Will
Defects in execution can render a purported will invalid, regardless of the testator’s intent. Except in an emergency, it is very risky to attempt to draft and sign a will without the assistance of a competent attorney. Homemade wills pose a real danger of a gap in the disposition of assets, or partial intestacy. If improperly witnessed and executed, the will may be wholly invalid, resulting in a total intestacy. However, a will need not be drafted by an attorney to be valid. A document entirely in the testator’s handwriting, or a holographic will, may qualify, so long as it is an expression of testamentary intent and meets the requirements of the Texas Estates Code. Courts have probated wills written on scrap paper, paper plates—virtually anything that can be written on. The vast majority of wills are formal, typewritten, and signed by the testator in the presence of two witnesses.
“Probate” originates from the Latin verb probare, meaning “to approve.” A probate court describes the courts in Texas that have jurisdiction over the approval of wills and administration of decedent’s estates. Historically, the constitutional county court exercised probate jurisdiction in Texas. However, as counties grew more populous, the Texas legislature created statutory probate courts. Today, counties in and around the major metropolitan areas in Texas, including Houston, Dallas/Fort Worth, Austin, and San Antonio feature dedicated statutory probate courts to handle the bulk of probate cases. Sometimes county courts “at law” handle probate issues. District courts have jurisdiction over contested probate issues in some counties.
Texas Will Contests
A “will contest” describes an effort to challenge the validity of a document offered for probate. To challenge a will, one must have standing, or a legal interest in the estate. Often, a will contest arises when heirs suspect misconduct was involved in the making of a will, or that the intent expressed in the will does not match the testator’s true intent. In Texas, the most common contests involve problems of testamentary capacity or undue influence. “Testamentary capacity” is the mental capacity required to execute a valid will. “Undue influence” refers to influence brought to bear on a testator to make decisions he would not otherwise make. In other instances, a will may be contested if it is the result of an insane delusion or fraud on the testator.
Who Can Challenge a Will in Texas?
Any person who has valid legal standing can file a will contest in Texas probate court. Not every person has the right to challenge every will, however. You will need to prove to the court that, if the court accepts the will as valid and the terms of the will proceed as they currently stand, your interests will be affected. If you cannot prove this harm, you may not have grounds to contest the will.
When Should You Hire an Austin Will Contest Lawyer?
In Texas, all civil lawsuits must adhere to a specific deadline known as the statute of limitations. The state imposes multiple deadlines for will disputes depending on the nature of the complaint. Generally, you have two years from the date the will is admitted to probate to file.
If you file your claim after the statute of limitations passes, the court will likely dismiss your claim. The sooner you obtain legal representation, the better your chances of a successful outcome. To preserve your claim and determine your filing deadline, contact an attorney as soon as the dispute arises.