When a Texas resident dies and leaves behind a last will and testament, their estate goes through a court-administered process known as probate. During this process, the person’s death is legally recorded, the validity of their will is established and their assets are distributed to their heirs. Probate is usually concluded without incident, but wills are occasionally contested. Wills can be contested by family members of the deceased whether they are mentioned in the will or not and by beneficiaries of the will being probated or any previous will. Under Texas law, interested parties have two years from the beginning of the probate process to contest a will.
Reasons to contest a will
Interested parties must have a valid reason to contest a will and cannot take action just because they feel the terms are unfair. In order to prevail, they must prove that the will has some kind of legal flaw. Common reasons to contest a will under the Texas Estate Code include:
• The testator was not of sound mind when they drafted the will
• The will was not properly executed
• The testator was subject to undue influence or under duress when the will was signed
• The testator was tricked into signing the will
• The will is a forgery
The burden of proof
Like all civil matters in Texas probate litigation is decided based on the preponderance of the evidence. This means an interested party must convince the court that their allegations are more likely true than false. This can be difficult in will contests because judges are reluctant to invalidate estate planning documents absent compelling evidence.
Avoiding probate and will contests
Individuals who would like to reduce their tax burden and eliminate the chances of their wills being contested should consider placing their assets into trusts. When this is done, the assets are no longer owned by the person who established the trust so they are not subject to probate. Trusts also give individuals more control over the distribution of their assets and could prevent beneficiaries from losing access to Medicaid or other government programs.