We discussed the various reasons why Texas residents can challenge a will in our last article. Now, we discuss the logical next step. What are your options when someone produces an invalid will that reduces your inheritance? And how do you preserve your rights before you lose them?
How to Find Out If Someone Has Filed to Probate a Will in Texas
The first step is investigating whether someone filed a case to “probate” an invalid will. The person who filed the case is called the “applicant.” The applicant’s goal is to obtain an order from the probate court, which states that the will is valid. Before the court enters that order, the will is just a piece of paper with no legal effect.
How do you know when an applicant has filed for probate of a will? Critically, the applicant is not required to serve anyone with papers or otherwise specifically give anyone notice. Instead, when the case is filed, the court posts a notice to the public, which states the name of the deceased person, the case number, and a note that the applicant is attempting to probate a will. This notice is usually posted on a bulletin board somewhere inside the courthouse. The court cannot enter an order finding that the will is valid until, at the very earliest, the first Monday at least 10 days after the public notice was posted.
So, if you aren’t entitled to specific notice, how would you know whether someone is trying to probate an invalid will and claim your inheritance? Obviously, you can’t visit every probate court in all 254 counties of Texas, find their bulletin board, and scan the list of cases. The good news is that probate proceedings are public knowledge. First, locate the appropriate county. If the deceased person was living in Texas when they died, then find the county where they were living. If the deceased person was living outside county, then find the county where the majority of their property is located.
Next, identify the type of court where the probate case would be filed. Every county has several types of courts—for example special probate courts (only in bigger counties), county courts, county courts at law (in medium and bigger counties), and district courts. We recommend calling the county clerk’s office and asking which type of court handles their probate cases.
Finally, make an inquiry to the appropriate court in the appropriate county. The larger Texas counties share their dockets online, which usually allow you to make this inquiry online, usually by searching for the deceased person’s name. In smaller counties, you can simply call the clerks of the appropriate court, tell them the name of the deceased person, and ask them whether anyone has filed application to probate a will. You may need to speak with several people at the court, but eventually you will end up at the right place.
What You Must Do If You Discover an Invalid Will Was Filed for Texas Probate
Now, let’s say you discover that a probate case has been opened. You must act quickly to protect your rights. Remember, a probate court can enter an order declaring a will valid as soon as 10 days after the application was filed. After the probate court enters its order declaring a will is valid, it becomes much more difficult to challenge the will.
Once you discover a case was filed, contact a probate lawyer immediately. The probate lawyer can file a formal opposition to the invalid will. This effectively puts the case on hold and gives you and your lawyer time to build your case. The case will then proceed like any lawsuit, and the parties can serve discovery requests, take depositions, engage expert witnesses, and proceed to trial before a judge or jury.
You may find that the probate court already entered its order declaring the will valid. Sometimes, this happens when you receive a special notice from the executor of the estate, which states that a will affecting your inheritance has been probated. Your job just became more difficult, but not impossible. Before a judge declares a will is valid, the applicant bears the legal burden of proving the deceased person had testamentary capacity. After the judge enters the order, person who challenges the will must face the burden of proving lack of testamentary capacity. For more information on testamentary capacity and other grounds for invalidating a will, please see our previous article in this series, Reasons to Dispute the Wills of Deceased Persons Who Lived in Texas.
You Must Beware of No Contest Clauses, Which Are Enforceable in Texas
Now that you discovered an invalid will was filed for probate, you should exercise caution before filing your opposition. Many wills contain “no contest” clauses. This type of provision typically states that if any person challenges the validity of the will, then they forfeit their entire inheritance.
There’s no reason to worry about no-contest clauses when the invalid will already takes away your entire inheritance. At that point, you have nothing to lose by challenging the will. But the invalid may reduce your inheritance, rather than eliminate it entirely. In that case, you should carefully weigh whether challenging an invalid will is in your best interest. If you successfully invalidate the will, then usually the entire will, including the no-contest clause, is invalid and has no legal effect. However, if your challenge is unsuccessful, then you may have just gambled away your inheritance. A probate litigation attorney can help guide you through the pros, cons, risks, and benefits to challenging a will with a no-contest clause.
In our next post in this series, we will discuss a different type of inheritance dispute. Many people believe that creditors are inescapable and fear they can be liable for a deceased person’s debts. We will dispel these misunderstandings in our next installment.
Our attorneys are battle-tested, with decades of experience challenging and defending wills. We regularly file and oppose will contest lawsuits in Dallas, Fort Worth, Plano, Denton, and throughout Texas. Please contact us as soon as possible if you discover an invalid will was filed for probate.