Probate Problems: Can You Still Contest a Will?

When a Will Doesn’t Reflect the Truth: Contesting After Probate

Contesting will after probate is possible in most states, including Texas, though it comes with specific challenges and deadlines. If you’re wondering if you can still challenge a will after it’s been through probate, here’s what you need to know:

• Time limit: In Texas, you typically have 2 years after probate to contest a will
• Valid grounds needed: Lack of capacity, undue influence, fraud, or improper execution
• Legal standing required: Only interested parties (beneficiaries, heirs, or creditors) can contest
• Higher burden of proof: Post-probate contests face stricter evidence requirements

The death of a loved one is difficult enough without having to worry about whether their final wishes were properly recorded and followed. When you suspect something isn’t right with a will that’s already gone through probate, it can feel like you’ve missed your chance to set things right.

Less than 4% of wills are ever contested, and most challenges are unsuccessful. This doesn’t mean valid concerns shouldn’t be addressed – it simply reflects the high legal standards required to overturn what courts have already approved.

While contesting a will after probate is more challenging than before probate, Texas law provides a two-year window to bring forward valid claims. This recognizes that fraud, coercion, or other issues might not be immediately apparent when grief is fresh and families are processing their loss.

“Overturning a will is a very difficult process,” note legal experts, but when there are genuine concerns about a loved one’s true intentions being subverted, the law provides remedies even after the probate process has concluded.

If you’re facing this situation, understanding the process, deadlines, and requirements is crucial before making any decisions about moving forward.

What You’ll Learn

In this comprehensive guide, we’ll walk you through:

• Your legal rights when contesting will after probate
• Critical deadlines that must be observed in Texas
• The specific grounds that courts recognize for post-probate challenges
• What evidence you’ll need to succeed
• The potential costs and risks involved
• Alternative approaches to consider

With over 40 years of combined experience in probate litigation, we’ve guided many Texans through this complex process. Our goal is to help you understand your options clearly so you can make informed decisions during this difficult time.

Can You Contest a Will After Probate?

Yes, you absolutely can contest a will after it’s been admitted to probate in Texas. While many people assume the window closes once probate begins, Texas law recognizes that sometimes problems with a will aren’t immediately obvious during the grieving process.

Contesting will after probate is more challenging than contesting before approval, and for good reason. The court has already reviewed the will and deemed it valid, so you’re essentially asking the court to reconsider its previous decision. This requires compelling evidence and proper legal grounds to succeed.

Under Texas Estates Code §256.204, you have two years from the date a will enters probate to file your contest. This two-year window is your safety net when something doesn’t seem right about a loved one’s final wishes.

If your post-probate contest succeeds, several things might happen:

The court may revoke the probate of the will entirely, possibly declaring your loved one died without a valid will (intestate). Alternatively, the court might modify how assets are distributed or even admit a completely different will to probate if one is found.

In certain situations, estates that have been closed can be reopened. This typically happens when new assets are finded or when an heir proves they never received proper notice of the original probate proceedings.

Who Has Standing to Sue?

Texas law doesn’t allow just anyone to contest a will after probate. You must be an “interested party” with a financial stake in the outcome.

Only these people can typically contest a will after probate:

• Beneficiaries named in the current will
• People named in a previous will who got less (or nothing) in the newer will
• Legal heirs who would inherit if there was no will at all
• Creditors with valid claims against the estate
• In some cases, guardians representing minors or incapacitated people

Without proper standing, your case will be dismissed regardless of how strong your evidence might be. That’s why determining your legal standing is the critical first step when contesting will after probate.

Where & When to File the Petition

Post-probate contests must be filed in the same court where the original probate took place. In Texas, this is typically a statutory probate court, county court at law, or county court, depending on where you live.

Timing is absolutely critical with these cases:

The general rule is straightforward – file within 2 years of the date the will was admitted to probate. However, there are limited exceptions. Under what’s called the “findy rule,” if fraud couldn’t have been finded earlier with reasonable diligence, the court may extend the deadline. Similarly, claims based on forgery may sometimes qualify for extended deadlines.

The two-year deadline is strictly enforced. Courts rarely grant extensions, and only in truly exceptional circumstances involving fraud or deliberate concealment that prevented you from finding grounds for contest earlier.

Primary keyword recap

Contesting will after probate requires quick action within that critical two-year window provided by Texas law. While probate is designed to create finality for estate distribution, the law recognizes that issues like fraud, undue influence, or lack of capacity sometimes don’t become apparent until later.

It’s worth noting that notice requirements for probate in Texas are minimal—often just a posting on the courthouse bulletin board. This means interested parties might not even learn about probate until after it’s completed. This reality is one reason why the law allows post-probate contests, but with strict deadlines and requirements to maintain the integrity of the process.

Legal Grounds & Key Evidence

When contesting will after probate, you can’t just claim something feels wrong. Texas courts need specific legal reasons that can invalidate a will even after it’s been approved. Think of these as your “tickets to entry” for challenging a will that’s already gone through probate.

Testamentary Capacity Essentials

At its heart, testamentary capacity means the person making the will was mentally “with it” enough to understand what they were doing. For a will to stand up legally, the person must have:

Known they were creating a will, understood what property they owned, recognized their family members, and grasped how their will would distribute their assets.

“Many families struggle with this issue when a loved one shows signs of cognitive decline,” says Keith Morris, founder of Texas Probate Attorney. “The key is proving their mental state specifically on the day they signed the will, not just general decline.”

Medical records showing dementia diagnoses can be powerful evidence, especially when combined with a doctor’s testimony. But remember – occasional forgetfulness or even mild dementia doesn’t automatically invalidate a will. The courts look at whether the person understood what they were doing at the moment of signing, not whether they were perfectly sharp all the time.

Undue Influence Red Flags

Undue influence happens when someone pressures or manipulates the will-maker so much that the document reflects what the influencer wanted, not what your loved one truly intended.

Watch for warning signs like a caretaker who suddenly isolates your loved one from family, or suspicious last-minute changes that benefit someone who helped create the will. When an elderly parent leaves everything to a new “friend” and cuts out children they were close with for decades, courts take notice.

“We often see cases where a vulnerable person becomes dependent on a caregiver who then benefits dramatically in a new will,” notes Stacy Kelly of Texas Probate Attorney. “The challenge is proving the influence crossed the line from suggestion to manipulation.”

Gathering witness statements about changes in your loved one’s relationships, documenting who controlled access to them, and highlighting dramatic shifts in their estate plan can help build your case.

Procedural Defects & Multiple Wills

Sometimes the problem isn’t what’s in the will but how it was created. In Texas, a valid will typically needs the will-maker’s signature and two witnesses (who are at least 14 years old) who signed while watching the will-maker sign. Handwritten wills need to be entirely in the creator’s handwriting to be valid without witnesses.

When multiple wills exist, things get even more complicated. Texas follows something called “dependent relative revocation,” which basically means if a newer will is found invalid, courts may revert to an older valid will if they believe that’s what the person would have wanted.

Even without specifically saying “I revoke all prior wills,” Texas law generally assumes a newer will replaces older ones. But this can be challenged if evidence suggests your loved one didn’t intend to completely throw out earlier plans.

The burden of proof in these cases is substantial, especially after probate. Courts generally prefer not to disturb settled estates without compelling evidence that something was seriously wrong with either the will itself or the circumstances surrounding its creation.

Step-by-Step Process to Challenge Post-Probate

Contesting will after probate follows a specific legal process in Texas. Understanding each step helps you prepare for what lies ahead.

1. Initial consultation with a probate attorney: Review your case, standing, and potential grounds
2. File an application to set aside the order admitting will to probate: This must be filed in the same court that granted probate
3. Serve notice to all interested parties: Everyone with a stake in the outcome must receive formal notice
4. Findy phase: Gather evidence through document requests, depositions, and expert opinions
5. Pre-trial motions: Address preliminary legal issues before trial
6. Mediation or settlement discussions: Many cases resolve without trial
7. Trial: Present evidence and testimony to the court
8. Post-trial motions and possible appeals: If necessary

The burden of proof in post-probate contests is on the contestant. This is different from pre-probate contests, where the burden falls on the proponent of the will. This shift makes contesting will after probate more challenging, requiring stronger evidence and legal arguments.

Evidence Gathering & Filing Tools

Effective evidence gathering is crucial when contesting will after probate. Useful tools include:

• Medical record subpoenas: Obtain treatment records, especially those related to cognitive function
• Witness depositions: Question under oath those who knew the testator or witnessed the will signing
• Financial records: Trace unusual transactions or patterns suggesting financial exploitation
• Prior will versions: Compare changes between versions to identify suspicious alterations
• Expert witnesses: Medical professionals, handwriting experts, or forensic accountants may provide critical testimony

In Texas, you can also request information from the attorney who drafted the will, similar to a “Larke v Nugus” request in other jurisdictions. While not formally recognized by this name in Texas, courts generally allow findy of information about the circumstances of the will’s preparation.

Settlement, Mediation & Family Agreements

Not all will contests need to go to trial. In fact, many are resolved through:

• Mediation: A neutral third party helps facilitate a voluntary agreement
• Family settlement agreements: All interested parties agree to a different distribution than specified in the will
• Probate compromise agreements: Court-approved settlements that modify the terms of a will

These alternatives often save time, money, and family relationships. Texas courts generally favor settlement over litigation when all parties consent and the agreement doesn’t prejudice creditors.

For a settlement to be enforceable, it must be in writing, signed by all interested parties, and in some cases, approved by the court. We often recommend exploring these options before committing to full litigation.

Primary Keyword in Action

Contesting will after probate requires strategic timing and thorough preparation. The two-year statute of limitations means you must act decisively while still gathering sufficient evidence to meet the higher burden of proof.

In our experience, successful contests often begin with a comprehensive investigation that establishes a clear timeline of events surrounding the creation of the contested will. This includes documenting the testator’s mental state, identifying who had access to them, and tracking changes in their estate planning documents over time.

Costs, Risks & Alternatives

When thinking about contesting will after probate, it’s smart to understand what you might be getting into – both financially and emotionally. Let’s talk about what this journey might cost you, and some other paths you might consider.

Financial Considerations

Will contests aren’t cheap – they represent a significant investment of both time and money. Most people are surprised by the total costs involved:

Attorney fees typically range from $250-$750 per hour, depending on experience and location. Beyond that, you’ll face court filing fees, service costs, and potentially thousands in expert witness fees if you need medical experts or handwriting analysts to make your case.

All told, you might spend anywhere from $10,000 for straightforward cases to $50,000 or more for complex battles. Some attorneys do offer contingency arrangements for cases involving substantial assets, but don’t count on this option being available.

“Most clients underestimate both the financial and emotional investment a will contest requires,” says Keith Morris. “We believe in being completely transparent about costs from day one, so there are no surprises down the road.”

No-Contest Clauses

Many wills include what’s called a “no-contest” or “in terrorem” clause – essentially a provision that says if you challenge the will and lose, you forfeit whatever you would have received.

In Texas, these clauses generally hold weight, but with important exceptions:
* They don’t apply if your contest is made in good faith with just cause
* They can’t affect someone who isn’t named as a beneficiary in the will
* They don’t apply to actions that simply seek to interpret or enforce the will

Before contesting will after probate when such a clause exists, carefully weigh what you might lose against what you hope to gain. This is a personal calculation that depends on your specific circumstances.

For more detailed information about no-contest clauses and their implications, you can review Nolo’s comprehensive guide on no-contest clauses.

Emotional and Family Impact

The dollars and cents only tell part of the story. Will contests often bring long-buried family tensions to the surface. Relationships that took decades to build can fracture in months of contentious litigation.

Consider whether the potential financial gain is worth the possible long-term damage to family bonds. Some wounds never fully heal, and holiday gatherings may never feel the same after accusations have been made public in court.

Alternatives to Consider

Before diving into litigation, consider whether there might be a less costly or confrontational approach:

Direct negotiation with other beneficiaries sometimes leads to voluntary adjustments without court involvement. Many families find common ground when they talk openly about their concerns.

If executor misconduct is your main concern rather than the will’s validity, requesting a formal accounting might address your issues without challenging the will itself.

Similarly, an executor removal action focuses on administration problems rather than the document’s validity – often a more targeted approach.

When assets were transferred to a trust, a trust contest might be more appropriate than challenging the will.

Each family situation has its own unique dynamics, and what works in one case may be completely wrong for another. That’s why we recommend discussing all options with an experienced probate litigation attorney before making any decisions.

Budgeting & Fee-Shifting Possibilities

In some circumstances, you won’t have to bear all costs yourself. The estate may pay for litigation expenses if the court determines the contest benefits the estate as a whole. This typically happens when:

• Your contest clarifies genuinely confusing terms in the will
• You’re addressing legitimate concerns about the executor’s actions
• The court decides your contest was necessary to determine if the will is valid

If you win your case, you might recover some costs from the opposing party, though this isn’t guaranteed. The safest approach is to prepare for covering all expenses yourself, then treat any cost recovery as a welcome surprise.

Safer Estate-Planning Protections

If you’re worried about your own estate plan facing challenges after you’re gone, consider these protective steps:

Video recording your will signing creates a clear record of your capacity and free will that’s hard to challenge later. Paired with a self-proving affidavit, which eliminates the need for witness testimony under Texas law, you create a strong foundation.

Regular updates to your estate plan show active engagement and awareness of your assets and wishes. Consider a medical capacity evaluation when executing important documents, especially if you have health concerns that might later be used to question your capacity.

Choose witnesses who know you well but aren’t beneficiaries in your will. This removes potential conflicts that could be exploited in a contest.

While no approach completely prevents challenges, these steps significantly reduce the chances of a successful contest after you’re gone.

Frequently Asked Questions about Contesting a Will After Probate

How long do I have to act in Texas?

In Texas, the clock starts ticking the moment a will enters probate. You have exactly two years from that date to file your contest—and this deadline isn’t just a suggestion. Courts enforce it strictly, with very few exceptions.

“But what if I just found out something was wrong?” We hear this question often. Unfortunately, the findy of new information rarely extends your deadline. The only real exception is if you can prove fraud that was deliberately concealed and couldn’t have been finded earlier despite your best efforts.

If you’re even thinking about contesting will after probate, please don’t wait. Even if you’re still gathering evidence or feeling uncertain, speaking with an attorney right away can protect your rights. Filing within that two-year window preserves your options while you continue building your case.

What happens if new assets surface?

Life is full of surprises—including finding assets nobody knew existed after an estate has been closed. When this happens, the estate can be reopened to handle these newly finded assets.

This reopening isn’t the same as contesting the will. You’re not challenging the will’s validity; you’re simply asking the court to distribute additional assets according to the already-established will or intestacy laws.

The findy of new assets doesn’t reset or extend your deadline for contesting will after probate. That two-year window remains fixed, regardless of when hidden assets come to light. This is why thorough asset investigations are so valuable early in the process.

Can we settle without a court trial?

Absolutely—and in our experience, this happens more often than you might think. Family courtroom showdowns make for dramatic television, but in real life, many will contests resolve without ever reaching trial.

Several paths can lead to resolution:

Mediation brings everyone to the table with a neutral third party who helps guide the conversation toward compromise. This structured approach often helps family members hear each other in ways they couldn’t on their own.

Family settlement agreements allow all interested parties to negotiate their own solution privately. These agreements can completely reshape how assets are distributed, regardless of what the will says—as long as everyone agrees.

Probate compromise represents a middle ground where the court formally approves your family’s negotiated settlement, giving it legal weight and enforceability.

The beauty of settlement is flexibility. While a court typically must either uphold or invalidate the entire will, a settlement can create creative solutions that acknowledge everyone’s concerns. Maybe one heir receives a specific family heirloom they cherish while another receives more liquid assets—arrangements that honor both the letter and spirit of your loved one’s wishes.

For any settlement to stand, all interested parties must agree to the terms. When minors or people with disabilities are involved, the court will likely need to review and approve the agreement to ensure their interests are protected.

Conclusion

The journey of contesting will after probate is undoubtedly challenging, but Texas law provides this path for good reason. When something doesn’t feel right about a loved one’s final wishes, the two-year window offers a meaningful opportunity to seek justice, even after probate has concluded.

As we’ve explored throughout this guide, several critical factors will shape your experience:

First and foremost, time is not your friend in these matters. The two-year deadline isn’t just a suggestion—courts enforce it strictly, and waiting too long can permanently close the door on valid concerns. Many families come to us wishing they had acted sooner, so if you’re feeling uncertain, at least have an initial consultation to understand your options.

Before investing emotionally and financially in this process, confirm your legal standing. Not everyone affected by a will has the legal right to contest it, and courts won’t hear cases from those without proper standing, regardless of how compelling their evidence might be.

Successful contests require specific legal grounds recognized by Texas courts. General feelings that something seems unfair won’t suffice—you’ll need to demonstrate issues like lack of capacity, undue influence, fraud, or improper execution.

The evidence requirements for contesting will after probate are substantially higher than before probate. Courts naturally resist overturning their previous decisions without compelling reasons, so prepare to present stronger documentation and testimony than might have been needed initially.

Be realistic about costs. Between attorney fees, court expenses, expert witnesses, and other litigation costs, contests can quickly become expensive. Weigh these costs against what you stand to gain, and consider whether the emotional closure might be worth the investment even if financial recovery is limited.

Finally, don’t overlook settlement opportunities. While standing firm on principles matters, we’ve seen many families find better closure through mediated agreements than through years of bitter litigation.

At Texas Probate Attorney, we understand these situations often arise during times of grief when emotions run high. Our team brings decades of combined experience helping Texas families steer these complex waters with compassion and clarity.

Whether you’re considering initiating a contest or defending against one, we provide personalized attention to each case. We believe in aggressive litigation when necessary while remaining open to efficient resolutions that spare families unnecessary conflict.

Every situation has its unique circumstances, and while this guide provides a solid foundation, it can’t replace personalized legal advice. If you’re facing potential will contest concerns, we recommend speaking with an experienced probate litigation attorney who can evaluate your specific situation and help chart the best path forward.

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