Will contests make up a large part of probate attorney Dallas 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, probate attorney Dallas see complaints of improper execution, testator incapacity, duress, fraud, or undue influence.
What Makes a Will Valid?
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.
How Long Can a Will be Contested?
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 a client contacts a probate attorney Dallas, they 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 their representation, probate attorney Dallas will do their best to provide a big picture to help their clients evaluate the process and options as they move through the probate process and any potential estate litigation.
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.
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, a probate attorney Dallas is 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 the 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 a probate attorney Dallas 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.
The Following Feature Unique Considerations
Some key differences in how property is divided are whether there is separate property, community property, real property, and/or personal property. Here are some common situations we see in those heirship applications.
Married and all children of the same marriage.
This is the easiest situation. Here the separate personal property will go 1/3 to the spouse and 2/3 to the children. The separate real property will be left to the children equally subject to a 1/3 life estate in the property held by the spouse. This means that the spouse retains an interest in the property for the duration of their life. The spouse will also receive 100% of the community property.
Married with no children.
One probably thinks everything would get left to their spouse…. nope. The spouse would receive all of their separate personal property and all of their community property. But their separate real property? Half goes to the spouse, a quarter goes to their mom, and a quarter goes to their dad. If one (or both) of the parents are not living, their share goes down to their siblings and their heirs. Don’t have any siblings? Then the share would travel up to the grandparents and back down to the aunts and uncles and their descendants.
Unmarried with no children.
Here 50% goes to the victim’s dad and 50% goes to their mom. If one or both of the parents are not living, it travels down to the siblings and descendants. If one does not have any siblings then the share will travel up to grandparents and down to their aunts and uncles. Was the mom or dad an only child? Are the grandparents also deceased? Then the share can travel all the way up to their great grandparents and back down the family tree.
Intestacy laws in Texas can get messy fast. There are cases with hundreds of beneficiaries. Can their estate be administered without a will? YES, absolutely! Should it? No. Your family will be glad they wrote a will. The Estates Code does its best to ensure the family shares in their Estate, but I bet they would prefer their Estate didn’t make its way to their 3rd cousin twice removed.