Probate Disputes

A probate dispute is a disagreement that occurs during the process of estate administration. Disputes can have a significant impact on the process, causing delays as well as additional expenses. Probate is a court-supervised process that is necessary to settle the affairs of a decedent. There are several different steps that must be completed during the process. At any time, if someone with an interest in the proceeding objects to an issue they have the right to file a written objection and initiate probate litigation to resolve the matter. Tex. Est. Code § 55.001. Probate disputes and probate litigation commonly are based on disagreements related to the will, disagreements about the actions of a fiduciary, or issues related to the right to inherit.

Will Contest

A will is supposed to represent the wishes of the testator. The law includes many requirements for making a will to ensure that it does indeed reflect those wishes. A court will only probate a will that is valid. If an interested party such as a family member believes that the will that was submitted to probate is invalid or fraudulent, they have the right to object to it. A challenge to a will is called a will contest.

While family members, especially those who were disinherited, may be unhappy with the terms of a will, that is not enough to support a will contest. There must be legal grounds such as:

  • Unlawful execution. The necessary formalities were not followed, including that the will must be in writing, must have been signed by the testator, and must have been witnessed by at least 2 people. Tex. Est. Code § 251.051
  • Absence of testamentary capacity. The testator was not at least 18 years old, married, or in the armed forces. Or, the testator was not of sound mind. Tex. Est. Code § 251.001
  • Undue influence. Undue influence occurs when a vulnerable testator is illegally influenced by an opportunistic person into making a will they would not have otherwise made.
  • Duress. The testator only made the will because they were coerced to do so.

If the court concludes that the will is not valid, it will not admit it probate or it will revoke probate. Instead, the court will probate a prior or later valid will, if any. If there is no valid will, the decedent will be declared intestate and the law of intestate succession will apply. Tex. Est. Code § 201.001 et seq

Fiduciary Litigation

A fiduciary is a person or an entity that has the authority to care for the interests of a person. By law they must fulfill their responsibilities with honesty and care. With respect to estate matters the personal representative is a fiduciary. Other fiduciaries that may be involved in estate matters include trustees, guardians, attorneys, and accountants.

If there is a concern that the personal representative or other fiduciary has acted improperly, an interested party can file a lawsuit based on a claim of breach of fiduciary duty. The result may be the removal of the fiduciary or personal liability.

Disagreements over guardianships can lead to probate litigation. A guardian is someone who has the legal authority to care for and make decisions for another person, usually a minor. Guardianship disputes typically center on questions related to who will serve as guardian and financial disputes related to the guardianship.

Kinship Hearings

A kinship hearing is a proceeding to determine the right to inherit. A kinship hearing may be required where a decedent died intestate without a surviving spouse, descendants, or any other known relative. If a distant relative comes forward claiming inheritance rights they may be required to prove relatedness during a kinship hearing.

Forfeiture Clause

A “forfeiture clause” is a provision in a will that voids a testamentary gift if the beneficiary initiates any type of estate litigation, including a will contest. Texas law provides that forfeiture clauses will be upheld unless there was just cause for bringing the action and the action was brought and maintained in good faith. Tex. Est. Code § 254.005

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