Will Contests Attorney
Will contests make up a large part of our practice. When someone has been cut out of a will or is surprised by the will’s beneficiaries they may consider whether litigation is needed. Any person who has an interest in or appears to have an interest in an estate can contest a will. There are numerous reasons why someone would challenge a loved one’s will. Typically, we see complaints of improper execution, testator incapacity, duress, fraud, or undue influence.
For a will to be valid, a testator, the creator of the will, must have testamentary capacity. Testamentary capacity means, among other things, that testators know the extent of their property, that they want to make a will, who their heirs are, and what they want to do with their property. They must be able to consider all of these factors at the same time, understand the relationship between each, and make a reasonable judgment as to these elements.
A person can contest a will up to two years after the will is admitted to probate, with some exceptions that allow one to contest more than two years after. But one can also file a contest before the will is probated – meaning after a will is filed but before the court has found it to be valid. The timing is often a critical factor that should be considered quickly.
Though a quick decision is often necessary, it’s not always easy to determine whether to enter into any form of estate litigation. When you contact us we will start with a consultation which will include some initial impressions on whether litigation may be warranted. There is a lot to consider before entering into any litigation including the impact it will have on surviving relationships. Throughout our representation, we will do our best to provide a big picture to help you evaluate the process and your options as you move through the probate process and any potential estate litigation.
Removing Executors and Administrators
Another common reason for estate litigation is to seek the removal of an executor or administrator. Typically, the removal is based on a breach of fiduciary duty by the administrator or executor or a conflict that has arisen from their service. Executors and administrators owe the beneficiaries or heirs a high standard of care which includes: giving a full accounting, fully disclosing all necessary information, and a duty of loyalty. Failure to provide the beneficiaries with that standard of care may be a strong reason to pursue litigation.
Additionally, if you are at all concerned with any mishandling of estate assets you may want to get in contact with a probate litigator to investigate the Administrator’s actions and where the funds are going. Depending on the findings, beneficiaries can pursue litigation seeking the removal of an administrator of an executor for mismanaging the estate or self-dealing.
You want someone in this position who will handle the estate with care and keep the beneficiaries informed. When there is a breakdown in that communication or even the absence of communication from the administrator or executor, litigation may be warranted.
If a relative dies without a will, there are procedures that one can take to determine the proper heirs. This process can be smooth and clear-cut but it can quickly lead to complex litigation issues. To start, Texas has a set distribution pattern that dictates who inherits when there is no will. You can view our post here which describes intestate succession, and dictates how an estate will pass if no will is probated.
When seeking a determination of heirship the court will look for spouses and children first. If those are not present you move up to parents and siblings, and if nobody is alive at that level up to grandparents and back down. When there is litigation in an heirship determination we are usually seeing a child that has been left out, a spouse seeking a determination of common-law status, or extended family heirs.
These rules can be complicated and difficult to understand. If heirship is needed and there is any concern it is best to get a seasoned probate law firm involved to help unpack how intestate succession will play out for your case.
If the question involves a common-law spouse there are three elements that will have to be proved: was there an agreement to be married, did they live together, and did they hold themselves out to the community to be married? Many people believe the key is the amount of time someone claimed to be married or lived together, but time does not necessarily factor into these questions under Texas law. Hiring an estate litigator with experience in this area will help decipher what factors played or didn’t play into the establishment of a common-law marriage in the case at hand.
In our firm, estate litigation cases allow for an hourly fee or, depending on the circumstances, a contingent fee. A contingency fee is not appropriate in all situations. When we evaluate your case, we will consider the unique circumstances of your case and discuss whether a contingency fee is an option.