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What is Probate Litigation?

Probate litigation occurs when there is a dispute about who should be in charge of an estate or how distributions are made. Probate court is also where you file for guardianship. Guardianship often generates litigation because people will fight over who has control of the ward’s money.

What is the “Will Contest?”

A will contest is filed by someone who does not agree with some aspect of the will. It could be that the will was not signed properly, there could be another later will, there could be allegations of undue influence or that the person did not have the capacity to sign the will.

Who is Able to Contest a Will or Trust?

A person interested in an estate may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue. The person is entitled to process for witnesses and evidence, and to be heard on the opposition, as in other suits. “Interested person” or “person interested” means (1) an heir, devisee, spouse, creditor, or any others having a property right in or claim against an estate being administered, and (2) anyone interested in the welfare of an incapacitated person, including a minor.

What are the Warning Signs of When to File a Will Contest?

If you are considering filing a will contest, you should file before the will is probated. From a very general perspective, if you file before the will is probated, the person attempting to probate the will has the burden of proof to support the will. If you file after the will is probated, you will have the burden of proof to show the will was invalid.

What Are Some Possible Events that Can Lead to a Will Being Contested?

The most common factual scenario for a will contest is the existence of children from a prior marriage. The distribution to those children will be much different if they prove the parent died intestate, in other words, they prove that the will is invalid for some reason. Texas law is very unfriendly to second spouses for intestate distributions.

How Can the Validity of a Will or Trust Be Determined?

The only way to obtain a finding of the validity of a will or trust is through the court system. When a will is “probated” that means it has been found to be valid. People can still contest the will after it is “probated.” It is much less likely that a trust will be challenged. A trust does not need to go to court. It is a contract outside the probate system and there is no reason to do all the “notifications” such as to creditors and public notice of the probate as you would with a will.

Can There Be Litigation When There is a Trust?

People can file lawsuits. That does not mean they will win them. Unless someone knows about the trust, they will not be alerted to file litigation. When a will is submitted to probate, the first thing that happens is a public notice in the newspaper. There is no public notice with a trust. There can be litigation with a trust, but there is less to litigate. Most of the trusts we write specifically state that the trustee has no duty to make an accounting to the beneficiaries. It also says that if a beneficiary challenges the trust in any way, that beneficiary receives nothing from the trust.

Do I Need an Attorney for Probate or Trust Litigation?

Any litigation involving probate or trusts will require an attorney. It is an area of the law that has its own statutes, and lawyers who do regular civil litigation often do not feel confident handling probate litigation. There is no reason why a party in a probate action should be unrepresented. It is a recipe for disaster.

Can a Decision Made By the Probate Court Judge Be Appealed?

Yes. A decision on a final determination on certain issues can be appealed to the intermediate court of appeals. If there has been a decision or ruling made that you disagree with, it is best to contact a lawyer who handles appeals to determine whether there is a deadline running on when you must appeal that decision. In most civil cases, only final judgments may be appealed. There are more appealable orders in an estate action than in a regular civil case.

What Can an Estate Plan Attorney Do When There are Objections?

If there are objections to an estate plan while a client is trying to set it up, it is best if the attorney is advised of those potential objectors. There are a number of ways to address a potential objection, and it is a very fact-specific determination as to what the lawyer may advise. Being very clear in the documentation will become even more important. For example, rather than simply listing who should be a guardian in case of later incapacity, the client may want to list who may not be a guardian so as to prevent any dispute about that issue in the future.

For more information on Probate Litigation in Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 288-3200 today.

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