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Common Probate Problems

Problems often arise when dealing with matters relating to a decedent’s estate. The common complications arising during the probate of a will involve other persons or strangers to the estate who make the validation of the will in probate court difficult. To avert this kind of legal malady, especially during a time of grief, seeking the help of a lawyer is the best recourse.

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Common Probate Problems Faced by Beneficiaries

Alteration of the Will

Under current Texas probate laws, the provisions of wills and testaments may be altered, amended, or modified. It’s not just the testator who can change it — beneficiaries, too, may want to have the will or testament changed for various reasons. It could be because they do not need the transmitted property or would want to repudiate the inheritance in favor of the other heirs. Another reason is to mitigate inheritance taxes.


Inheritance tax is paid when ownership of property is transferred to the beneficiary upon the death of the decedent. However, no title passes until this tax is paid. On the downside, the amount of inheritance taxes can be very high, particularly among inherited properties with high values. For people who want to avoid paying hefty inheritance taxes, altering the provisions of the will may be a good recourse course of action.

Someone Contests the Will

For heirs and beneficiaries of a will, nothing is more frustrating than having someone enter into the fray and contest the probate of the will. If not resolved as early as possible, this could become a legal impediment to the allowance of the will and could delay the proceedings even further.

Disagreements Among Heirs Over Joint Inheritance

Joint inheritance is especially common among families with large and undivided properties (like real estate). Problems usually arise when heirs and beneficiaries argue as to whom a particular share belongs or what to do over the commonly owned asset. It is a sad reality that loved ones fight over a piece of property, which could have been avoided had the decedent taken steps to carefully plan their estate.

International Property

Some properties are located abroad. Each jurisdiction has its own set of laws governing wills, inheritance, and probate. When it comes to these matters, it is advisable to let a lawyer help with the legal intricacies.

What Can I Do If My Relative Didn’t Know What They Were Doing When They Made Their Will?

Are you suspicious that the will of a deceased relative does not reflect their true wishes on how their estate should be divided? If you feel there is something not quite right about a relative’s will, you can ask the probate court to invalidate the document or portions of it by contesting the will.

Challenging a Will in Texas

There are specific rules and statutes of limitations that apply when contesting a will. Not just anyone can contest a will in Texas. State law allows only “interested” persons to challenge the will. An “interested person” can be an heir, devisee, spouse, creditor, or any other person having a property right in or claim against an estate being administered; it also includes anyone interested in the welfare of an incapacitated person, including a minor. Under certain circumstances, the interested person only has two years from the time the deceased’s will was submitted to probate to file a challenge.

Some of the reasons for contesting a will include: The will is a fraud, undue influence was exerted on the deceased during the will writing process, or a situation in which there may be more than one will. One of the most common reasons given for contesting a will in Texas is the belief that the person making the will lacked “testamentary capacity” when the will was made.

Testamentary Capacity – Being of Sound Mind

Texas state law requires certain standards of competency when it comes to filling out various legal documents such as contracts and wills, as well as appointing guardians and providing consent for medical treatment.

In the state of Texas, testamentary capacity refers to the legal and mental abilities of the testator (the person who is writing the will or making changes to one). To meet the standards of testamentary capacity in Texas, to be of “sound mind,” the person making out the will must understand that they are making a will, have a general idea of the extent of their estate and possessions, and be able to recognize the members of their immediate family. A person may lack testamentary capacity due to their age, mental illness or injury, or the influence of drugs or alcohol.

Contesting a Will Based on the Testamentary Capacity in Texas

Contesting a will based on the testamentary capacity of a relative when they made out their will can be a challenging undertaking. If you have grounds to suspect that your relative lacked the necessary testamentary capacity while making out their will, or that someone took advantage of them to exert undue influence or commit fraud during the writing of the will, it is important to seek the assistance of an experienced probate litigation attorney as soon as possible.

As stated above, there are very strict time limits and specific rules involved in contesting a will in Texas. A probate litigation attorney will be able to determine if you have grounds to contest a will based on testamentary capacity. A will may be contested before or after it has been probated in court.

A review of the will can reveal irregularities that may indicate the relative was not of sound mind when they made out their will. The next step will be to submit a will contest form to the probate court. If accepted, the court will set a trial date.

Under Texas law, the person contesting the will has the burden of establishing, by a preponderance of the evidence, that the will is invalid. As in other suits, a person who is a party to a will contest or proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent’s death is entitled to due process for witnesses and evidence and to be heard on the opposition. This includes all communications or records relevant to the decedent’s condition before the decedent’s death.

Your attorney will represent you at trial, calling witnesses and submitting evidence on your behalf. If the court agrees with your claim, it may declare the probated will or sections of it to be invalid and may recognize an earlier will as the “real” one.

Speak with an Experienced Lawyer

If you are considering contesting the will of a relative, hiring Keith Morris & Stacy Kelly, Attorneys at Law to protect your legal rights through the probate process may be the best course of action for upholding the wishes of your loved one. We have helped families successfully contest wills based on testamentary capacity, fraud, and undue influence, and wills that have been signed improperly.

To discuss a will contest or other probate issue, please call Keith Morris & Stacy Kelly, Attorneys at Law at (713) 636-5339 in Houston and (817) 442-2048 in Fort Worth or contact the firm online.

Success that Speaks for Itself

Case Results
  • Dispute Resolved Estate Administration & Division of Assets

    Resolved highly contentious ongoing dispute over father’s estate and division of assets between son and daughter.

  • Dispute Resolved Estate Administration Case

    Successfully resolved case between two siblings fighting over cash and personal property of their father.

  • Hearing Won Evidentiary Hearing

    Won lengthy evidentiary hearing to prove client was not in contempt of court to avoid sanction or jail time.

  • Case Won Guardianship Case

    Won trial to exclude wife to serve as guardian of gentleman she married that was at least twice her age.

  • Six-Figure Settlement Reached Multi-Million Dollar Estate Case

    Obtained six-figure settlement after jury was seated for adopted child in multi-million dollar estate case after adoption was disputed.

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