How Long Do I Have To Contest a Will in Texas?

When a person passes away in Texas, their estate goes through the probate process. Probate is a court-administered procedure where the state legally recognizes someone’s death, settles their estate, and distributes estate assets to the appropriate heirs.

The last will and testament is the primary legal document during probate. Texas probate court confirms the validity of a will and interprets its instructions. You have the right to challenge a will that you believe is improper. Here, you will find an overview of the most important things you need to know about contesting a will in Texas.

Navigating probate is challenging, and an attorney can help you through the process. Contact a local probate attorney to help you contest a will. 

Challenging a Will in Texas: Know the Statute of Limitations

Texas has a statute of limitations that you must comply with if you are considering challenging a will. Under state law, you must officially contest the will within two years of the date of admission into probate. What happens if you wait too long to take action? In most cases, you will simply lose out on the right to challenge the will. The statute of limitations is a strict deadline.

There are limited exceptions to the statute of limitations. The probate court can extend the time limits where there is evidence of fraud. If you want to contest a will after two years, talk to a probate lawyer to make sure you still have legal standing.

What Are the Grounds to Contest a Will in Texas?

You cannot challenge a will just because you disagree with it. Every person has a general right to write and revise their own will in accordance with their wishes. That a will is not “fair” is not relevant to the probate court. That being said, you can challenge a will that is legally flawed. Here are the four most common grounds for contesting a will in Texas:

Improper Execution or Invalid Will

Under Texas law (Texas Estates Code § 251.001), a will is only valid if it meets certain requirements. You can challenge a will on the grounds of improper execution. A will that is not written or signed is not valid in Texas.

There are specific legal requirements to enforce a will in Texas. Generally, a valid will must be in writing and there must be at least two witnesses who are not interested persons. However, courts can enforce a holographic will — a will written entirely in the testator’s handwriting — without witnesses.

Lack of Mental Capacity

To make or alter a will, a person must have legal capacity and a sound mind. In some cases, people lose their capacity later in life, perhaps due to dementia or other medical issues. Any will drafted or revised by someone who lacks the mental capacity is not valid in Texas.

“To prove lack of testamentary capacity, you have to be able to show that the decedent had a lucid moment and that during that lucid moment, they understood in a general sense what their estate consists of, who the [beneficiaries] of their estate are, and that the document they’re signing is a will and what a will does,” says Bridget O’Toole, an estate and trust litigator at Schlanger Silver law firm in Houston.

“The lucid-moment standard is a fairly low bar; if you have an estate planning attorney that drafted the will in question, that attorney is, of course, going to testify that the deceased person had capacity when they signed the will — so you are going to have to prove to a jury or to the judge that the estate planning attorney was wrong about capacity. If you have an experienced estate planning attorney, that can be a difficult hurdle to overcome.”

Undue Influence

You also have the right to challenge a will on the basis that another person — friend, family member, caretaker, etc. — improperly applied undue pressure to a vulnerable person. Some people are vulnerable to outside pressure when they are in poor health and reliant on outside help.

Fraud or Forgery

Lastly, you can always contest a will on the basis that the legal document is not itself authentic. The deceased may have a previous will that they drafted with the help of an attorney and distributed to interested parties. If suddenly a new will comes out distributing assets to a distant relative, probate court can consider if the new will is a fraud or forgery.

Getting Legal Help With Challenging a Will

Contesting a will is complex. You need to present a strong, well-supported claim to successfully challenge a will. If you have any questions about contesting a will, contact an experienced Texas estate and trust litigation attorney for legal advice.

A probate litigation lawyer will take immediate action to protect your inheritance rights and challenge an illegitimate will. “There are statutory deadlines that you need to be aware of. When you can file a contest and who has the burden of proof is impacted by when you file your contest, etc.,” says O’Toole. “I would never suggest that you try to handle this without an experienced probate litigator.”

For more information on contesting wills, see our overviews of estate planning, wills, trusts, probate and estate administration, and estate and trust litigation.