Contested Probate services relate to the multiple situations when the underlying will or trust is challenged by relatives or third parties. The circumstances are as varied as our clients and all on both sides of the equation whether the clients is defending and existing will or trust or challenging same. Regardless, the legal services are often complex and necessitate experienced counsel.
How does the Probate Process Work?
The presentation of the Will to the court in Texas starts the probate process which must be followed under Texas Law. Moster Craft probates Wills in courts throughout Texas with an emphasis in Lubbock, Plainview, Midland, Odessa, Amarillo, Abilene, Austin, Dallas, Wichita Falls, and Houston. The requirements for probating a will are strict and must be followed without exception including proper notice to parties, pleadings filed with the Probate Court, inventory list, the appointment of a trustee, and other items. Keep in mind that the property of the decedent cannot be accessed until the probate process is completed as all assets are subject to the jurisdiction of the probate court. The only exception is assets that are not included in the Will, for example, insurance policies, bank accounts, etc. The Firm will provide advice to clients on this issue which can seem confusing to non-lawyers.
In situations where the estate is small with minimal assets, Texas Law allows for an expedited process known as a muniment of title. To qualify, the party must show that there are no outstanding debts and that the total assets are not substantial.
What Claims are raised in Probate Litigation?
Unfortunately, conflicts between family members and beneficiaries occur frequently during the probate process which can cause complications, costs, and heartburn – to say the least. Typically, a family member challenges the distribution bequest in the Will and hires an attorney to champion his or her cause. Lawyers for the disgruntled beneficiary can raise a battery of claims which could reduce or eliminate a client’s right to distribution unless defended in Court.
What Claims can be raised to challenge a Will?
The challenging party can argue that the Will is not enforceable because an error was made in the preparation of the document. If so, Texas Law, not the Will itself, would determine who gets what. Other arguments include undue influence, incapacity, or the presence of other documents which purport to be valid modifications of the Will itself.
What is an undue influence when raised as a claim?
This relates to pressure or control exerted by a beneficiary to force distribution of assets under the Will. Typically, the testator is impaired or aged and relies on a third party such as a caregiver for daily support and services. The third party then exploits this relationship for personal gain. This abuse of power is known as undue influence.
Can the court set aside a bequest that resulted from undue influence?
Yes. All of that is part of the litigation process and will require counsel to file the appropriate papers, obtain a hearing date, and put on evidence.
What is incapacity when raised as a claim?
A testator must have the mental capacity to write a Will. The legal standard, however, is exceedingly easy to meet and simply requires that the testator have a basic understanding of the scope of her assets and how the property is to be distributed. Incapacity becomes a major issue when the testator was laboring under a severe mental illness or impairment when the Will was prepared, i.e., Alzheimer, Dementia, etc.
Can the court determine that incapacity is not an issue?
Absolutely. The process is the same as would apply to undue influence above
Come to us for Contested Probate Advice and Counsel – Simple Or Contested
We are here to ease your legal and emotional burden when probate becomes an issue. If you are on the receiving end of contested probate – we will give you a fast and comprehensive assessment of your case before we start.
Clients on the other end of the aisle who seek to challenge an existing will or trust need real answers and advice. The process can be expensive and tenuous. We will provide a risk assessment from the beginning so our client can perform the necessary risk/benefit assessment.