Tips For Handling Litigious Beneficiaries in Probate Court


When it comes to families and money or property, some people just cannot seem to be made happy. The unfortunate reality is that probating a will can bring up a lot of family issues, and things can get messy. There are legitimate reasons to challenge a will, and a probate court will consider any valid claims.

However, someone who feels left out or who believes didn’t get their fair share can delay the probate process and cost the estate additional legal expenses by contesting the will. Emotions can get the best of people and cause them to become contentious when they don’t like the provisions of a will.

Taking precautions to prevent a will contest can avoid delays in closing an estate and allow beneficiaries to receive their inheritance as intended.

Texas Probate Litigation Explained

After a will has been admitted to probate, the Texas Probate Code states the personal representative has 60 days to provide notice to any beneficiary named in the will. The notice lets the beneficiary know who the decedent was and either provides a copy of the will or summarizes the gifts given to the beneficiary.

Any interested person has the right to file a lawsuit to contest the validity of the will, and they have two years from the date the will was admitted to probate to do it. An interested person could be any of the following:

  • Heir
  • Devisee
  • Spouse
  • Creditor
  • A person who has a property right in or claim against the estate
  • Anyone interested in the welfare of an incapacitated person (including a minor)

When the reason for contesting the will involves forgery or fraud, the discovery rule applies, and an interested person has two years from the date the forgery or fraud was discovered to file a lawsuit. Any interested person who was legally incapacitated at the time a will was filed for probate has two years from the date incapacity is removed to contest the will.

Reasons for Probate Litigation

Probate litigation normally challenges the legal validity of a will. But it may also challenge the legitimacy of a beneficiary or the performance of the executor.

The testator (person making the will) must have the legal capacity to do so, and they must execute the will freely and voluntarily. There is no legal requirement that a will distribute property evenly between beneficiaries or include all possible beneficiaries when making a distribution. As long as legal requirements are met and the intention of the person creating the will is clear, the law will not interfere with the disposition of property.

Capacity to Make a Will

In order to execute a valid will in Texas, a person must be of ‘sound mind.’ Indications of sound mind are that the testator:

  • Understands the will and the effect of making a will
  • Knows the general nature and extent of their property
  • Knows the persons they wish to give their property to
  • Knows of any dependents
  • Is able to hold information long enough to make reasonable judgments

It is important for those who might want to contest a will for lack of capacity to know that in Texas, a testator need not have the ability to manage all of their business affairs to have the legal capacity to execute a will.

A testator who otherwise might lack the capacity to execute a will can be found to have had a ‘lucid moment’ at the time of execution. In contrast, an otherwise lucid testator can lack the capacity to execute a will due to an ‘insane delusion’ that materially affects the will.

Undue Influence

The Texas Supreme Court has said in regard to contesting a will for undue influence:

“Undue influence is that power which one person exercises over the mind of another in such a way as to destroy the latter’s free agency and compels him to do something, either through fear or some feeling which he is unable to resist, that he otherwise would not do.”

When a will is contested for undue influence, the relevant inquiry will include:

  • The circumstances surrounding the execution of the will – including the mental and physical health of the testator
  • The relationship between the testator and the alleged undue influencer
  • The opportunity to exert undue influence
  • The conduct and character of persons benefitted by the will

Will Formalities

Most wills in Texas must be in writing and signed by the testator. They must also be signed in the presence of the testator by two credible witnesses who are not beneficiaries. There is no requirement that a will be notarized.

If a will is successfully contested for improper execution, the probate court will declare the will invalid, and the property will be distributed according to the state’s intestacy laws.

Executor Misconduct

The executor of a will must be reasonably competent to carry out the responsibilities required to settle the estate. In addition, an executor has a fiduciary duty to the estate beneficiaries to account for actions taken and to not do anything to jeopardize their interests in estate property. An executor can be liable for unreasonable or self-serving actions that cause harm to the beneficiaries.

Tips to Discourage Litigious Beneficiaries in Probate

The best way to discourage litigious beneficiaries in probate is for a testator to anticipate the likelihood of a will contest and take precautions against having the will challenged. The following tips can help avoid will contests:

  • Make sure all beneficiaries know the distribution plan ahead of time.
  • Add a no-contest clause that disinherits anyone who contests the will and loses.
  • When a distribution plan is other than expected, use language making very clear the intention to benefit or not benefit a particular heir and why the decision was made.
  • Work with an estate planning attorney who can attest to competency and make sure the will is executed properly.

The last thing people making a will want to have happen is for their family to end up in a big fight in probate after they’re gone. Doing some pre-planning and working with a Texas estate planning lawyer who can identify and address potential will contest issues will help the probate process proceed with a minimum of expense and delay. Contact us today to find out how we can help you with litigious beneficiaries in probate.