How do I challenge a will in Texas?

On Behalf of | Jul 11, 2023 | Estate Planning

This blog has posted about will contests in the past. Indeed, in a prior post, we discussed the bases for contesting a will in Texas. Of course, simply knowing the bases for challenging that will is not enough information.

Who can challenge the will?

Not everyone can challenge a will. Only those who have a direct interest in the outcome of the will can file a lawsuit to contest its validity. These are called interested parties. They include beneficiaries named in the will, fiduciaries named in the will, such as executors or trustees, heirs-at-law who would inherit from the deceased person if there was no will or if the will was invalid and creditors who have a claim against the estate.

Interested parties have up to 2 years from the date that the will was admitted to probate to file a will contest. However, there are some exceptions, such as when fraud or forgery is involved, or when a person is incapacitated or under duress.

How to file a will contest

The first step to challenging a will is to file a petition with the probate court where the will is being administered. The petition must state the name of the deceased person, date of their death, name of the executor or administrator of their estate and the grounds for contesting the will. The petition must also include information about the interested party’s relationship to the deceased person and reason for the challenge.

The next step is to serve a copy of the petition to all parties involved in the probate proceeding, including the executor or administrator of the estate and all beneficiaries named in the will. The interested party must also pay a filing fee to initiate the lawsuit.

The final step is to present evidence and arguments at a hearing before a judge or jury. The interested party has the burden of proving their case by a preponderance of the evidence, which means that it is more likely than not that their allegations are true.

The executor or administrator of the estate and the beneficiaries named in the will have the opportunity to defend the will and present their own evidence and arguments. The judge or jury will then decide whether the will is valid or invalid based on the evidence and the law.

If the will is found to be invalid, the probate court will either admit a previous valid will to probate or distribute the estate according to the Texas laws of intestacy, which govern how property is divided when there is no will. If the will is found to be valid, the probate court will proceed with administering the estate according to the will’s terms.