When a loved one dies and they leave a will, there are steps that must be taken before assets are distributed according to what that will says. The mere existence of a will does not automatically mean the beneficiaries get their property right away after the testator dies. Instead, Texas requires an estate to go through probate first. Once this process is completed, the executor steps in and finalizes the wishes of the deceased in accordance with the will’s guidelines and Texas law.

Proving a Will is Valid in Probate Court

Even if someone dies and leaves a valid last will and testament, the probate process requires proof that everything was done properly and in accordance with Texas laws. This often requires the two witnesses who signed the last will and testament of the testator to provide sworn testimony in court or in a deposition. If the witnesses no longer live in the same area, are unable to travel, are members of the armed forces, or otherwise unable to provide sworn testimony, this can complicate the validation of a will.

One easy way to avoid this step is through a self-proving affidavit. This legal document is considered evidence the testator signed the will in accordance with Texas laws. In order to accomplish this, the testator must sign the affidavit before an officer authorized to administrator oaths – most commonly a notary public. The language required is very specific, and the testator along with two witnesses must swear to and sign the affidavit. The officer must also affix their official seal to the document. Once this is completed, this document negates the need for the witnesses to a will to appear in court as the will is now considered “self-proved.”

Keep in mind that if the original copy of a will is lost or destroyed, a copy of the will can be accepted by the court as well. It does require extra witness testimony at the hearing, however.

What the Executor Does

Once the will is accepted by the probate court, the executor can move forward with distributing the assets of the estate according to the testator’s wishes. The will should contain detailed instructions for how the deceased wants their property distributed to their beneficiaries. In order to do this, the executor or administrator must:

  • Catalog and report the assets of the estate to the county clerk within 90 days of their confirmation or appointment
  • Manage and safeguard the estate’s property until it can be distributed
  • Notify the beneficiaries named in the will
  • Notify creditors so they have an opportunity to file a claim for payment and pay outstanding bills or debts
  • Resolve any disputes about the will (disputes must be heard by a probate court judge)
  • Distribute assets to the beneficiaries
  • File a final income tax return (and an estate tax return, if necessary)

There are timelines and requirements involved for many of the steps listed above, so reaching out to an estate planning and probate administration lawyer is a good idea. An experienced lawyer can advise an executor and help them resolve an estate in accordance with the decedent’s wishes and Texas law.

Interested Parties May Contest the Will

Even with someone dies with a will, the probate process becomes more complicated when an interested party challenges the will. Not everyone is considered an interested party, however, and there is therefore a limitation on who exactly can challenge a will. Texas law defines an interested party as:

“An heir, devisee, spouse, creditor, or any other person who has a property right in or a claim against an estate”

There are some situations where a will contest may be likelier than in others. In those situations, there is typically some seemingly unequal treatment between children, or close family members have had their share reduced or eliminated in favor of a more distant relative or someone with less of a connection to the deceased person. In addition, a challenge is more likely when the person was elderly when they made the will, or they made a more recent large change to the terms of a prior will. If you are dissatisfied with the terms of the will because you think something was wrong, you have a right to be heard if you are an interested party.

A family member may be upset about their share or that another family member has received property. They could use a number of legal grounds to challenge the will, including:

  • The will was forged
  • A third party had an undue influence on the person making the will
  • The testator did not have the mental capacity to make and sign a will
  • The will does not comply with Texas law and/or it was not validly executed

Will contests are unseemly and often difficult to navigate. The combination of money and pre-existing tensions could inflame the situation. However, if you believe the will was not valid, you should raise your concerns.

Not every will contest leads to litigation. You can negotiate with the opposing parties and reach a settlement. In fact, the preferred solution to a will contest in Texas is mediation. The mediator can help the opposing parties talk through their differences and hopefully reach a compromise or solution. If the parties involved cannot come to an agreement, however, the probate judge will need to decide the dispute, adding time and expense to your case.

Contesting the validity of a will requires an experienced probate litigation attorney to help you navigate the process. Whether you represent an estate or need to challenge a will, Towson Law will represent your interests throughout the proceedings and advise you on the best approach to resolving the dispute.

Get Legal Help to Protect Your Rights and Interests

If you are an executor or a beneficiary to an estate, you hope the probate process will go smoothly and there are no delays or problems. Hiring an experienced probate attorney is a worthwhile investment during what is usually a difficult time. Families are already dealing with enough on their plates without having to deal with the technicalities of probate. As an executor, you may have questions about the process and need advice on what to do. As a beneficiary, you may need help to protect your own legal interests.

Call a Texas Wills Attorney Today

Towson Law can represent executors or interested parties in probate proceedings. We can help guide you through the legal process to make sure you are heard. We can provide you with the legal advice you need and handle the details of the process to make your life easier. Call us today at (817) 856-0270 or message us online to schedule an appointment.