How to Contest a Will in Texas

Estate, Trust & Fiduciary Litigation | Langley & Banack | San Antonio, Texas

If you believe a loved one’s will does not reflect what they truly wanted, you may be able to contest it. The attorneys on our Estate, Trust, and Fiduciary Litigation team spend their careers working on these disputes, and this guide answers common questions about how a will contest works in Texas: what it means, who can bring one, the grounds for challenging a will, the deadlines that apply, and where a contest is filed.

Answering the questions below are Chris Hodge and Jobe Jackson, shareholders in Langley & Banack’s San Antonio office. Chris is a past chair of the Fiduciary Litigation Committee of the State Bar of Texas Real Estate, Probate and Trust Law Section and a Fellow of the American College of Trust and Estate Counsel. Jobe focuses on estate, trust, and fiduciary litigation and appeals, and previously served as a briefing attorney at the Texas Fourth Court of Appeals. Together they host the firm’s seven-part Will Contest podcast series.

Listen to the Will Contest podcast series

On this page

• What does it mean to contest a will?
• Who can contest a will in Texas?
• What are the most common grounds for contesting a will?
• How long do you have to contest a will in Texas?
• Can you contest a will after it has already been admitted to probate?
• Can you contest a will years after someone has died?
• Is it better to contest a will before or after it goes through probate?
• Where do you file a will contest?
• What happens to the estate if a will is found invalid?

What does it mean to contest a will?

Contesting a will means formally challenging its validity in probate court and asking the court to set the will aside. A will contest generally argues that the document does not reflect what the person who died actually wanted, whether because they lacked the mental capacity to make a will, were unduly influenced, or the will was the product of fraud, mistake, or a failure to follow the legal formalities.

A will contest is a lawsuit. When we file one, we are asking the court to invalidate a last will and testament that has been, or is about to be, offered for probate. In our practice, these cases usually come from a family member who is concerned that the will on file is not what their loved one really intended. The law gives you several specific grounds to make that argument, and we cover each of them in detail across this section.

Related: The Most Common Grounds for Contesting a Will

Who can contest a will in Texas?

Not just anyone can contest a will in Texas. You have to be an “interested person,” meaning someone with a direct financial stake in the estate. That generally includes an heir who would inherit under Texas intestate succession if there were no will, or a beneficiary named in a prior will. Spouses and creditors can also qualify.

This is one of the first things we look at in any case, because it decides whether you can even be in the courtroom. The law calls it standing. In general, anybody interested in the estate has the right to bring a will contest. By that we mean anybody who would inherit under a previous will the decedent signed, or any of that person’s heirs at law. What it cannot be is some distant relative, a cousin for example, who would not inherit under any will or under intestate succession. If a person does not have standing, the court should dismiss their claims, so it is a threshold question we address right away.

Related: Who Is an “Interested Person” With Standing

What are the most common grounds for contesting a will?

The most common grounds for contesting a will in Texas are lack of testamentary capacity and undue influence. A will can also be set aside for fraud, mistake, a lack of the required legal formalities, or insane delusion.

The most common ground we see, and it goes to the fundamentals of having a valid will in the first place, is a claim that the person lacked testamentary capacity at the time they signed. That means they did not understand that they were making a will, did not understand the property they owned, did not know who their family was, or could not tie those things together in their mind to make a reasonable decision.

The next most common ground is undue influence, where someone exerts enough pressure over the will maker that the will becomes the product of that person’s wishes rather than the decedent’s own. Beyond those two, a will can be challenged for fraud, for a mistake about what the will said or did, for a failure to follow the signing and witnessing formalities Texas requires, and, less often, for what the law calls an insane delusion. We cover each of these grounds on its own page.

Related: Contesting a Will Based on Mental Capacity or Dementia · Undue Influence · Fraud or Mistake

How long do you have to contest a will in Texas?

In Texas, you generally have two years from the date a will is admitted to probate to file a will contest. The two-year clock runs from the date the will is admitted to probate, not from the date the person died.

This is one of the most important deadlines in this area of law, and it catches some people off guard. The Texas Estates Code gives you two years from the date the will is admitted to probate to file your contest. Notice that the clock is tied to probate, not to the date of death. Because the deadline is firm, we always tell people not to wait once they have a concern. The sooner we can look at the situation, the more options tend to be available.

Can you contest a will after it has already been admitted to probate?

Yes. You can contest a will after it has been admitted to probate, and you have two years from the date of admission to do so. That said, contesting a will before it is admitted to probate carries advantages, so the timing of your contest can matter a great deal.

Texas gives only a short window before a will is admitted to probate, but if that window has passed and the will has already been admitted, it is not the end of the road. You still have two years from the date of admission to file. The difference is what you are up against. Once a will is admitted and an independent executor is appointed, that executor can use the estate’s own assets to defend the will, which usually means paying attorney’s fees out of the estate to fight the contest. You can still bring a strong case after admission, but the position is different from contesting before admission.

Related: Is It Better to Contest a Will Before or After Probate?

Can you contest a will years after someone has died?

Possibly. Because the deadline runs from when the will was admitted to probate rather than the date of death, the timing depends on when probate actually happened. You also have a legal duty to investigate promptly, so you cannot simply wait and assume someone will notify you.

People are often surprised by this. The two-year window is measured from when the will was admitted to probate, so a death that happened years ago does not automatically mean you are out of time. What you cannot do is sit back. Under Texas law, every potential heir is charged with notice of what is in the public records, which means you have a duty to investigate any potential inheritance claim promptly after a relative dies. If you have a concern, the right move is to find out whether a will has been offered for probate rather than waiting to be told.

Related: Constructive Notice: Will You Be Told a Will Was Filed?

Is it better to contest a will before or after it goes through probate?

It is generally better to contest a will before it is admitted to probate. Filing before admission keeps the burden of proof on the person offering the will, and it lets you ask the court to appoint a neutral third-party administrator to protect the estate while the dispute is resolved.

This is one of the biggest strategic decisions in a will contest, and it is where experienced counsel makes a difference. If you are monitoring the situation and you file your contest before the will is admitted to probate, the burden of proof stays on the person offering the will. They have the tougher job of proving to the court that this is the proper will. If you wait until after the will is admitted, that burden shifts onto you, the contestant, to convince the court and jury that the will should not have been admitted.

Filing early has a second major advantage. When you contest before admission, you can ask the court to appoint a neutral third-party temporary administrator to manage the estate while the contest plays out. That matters because there is almost always animosity among the parties in a will contest, and you want a neutral person in control of the estate’s property, making sure it is accounted for and protected. The last thing you want is for the opposing party to be in control and for property to go missing while the case is pending.

There is a cost to be aware of. The temporary administrator, often an attorney experienced in probate, is paid out of the estate. We talk through those trade-offs with every client so the decision fits the specific situation.

Related: What It Costs to Contest a Will

Where do you file a will contest?

A will contest must be filed in the county where the will has been offered for probate. That is generally the county where the person lived and died, or where the majority of their property is located.

You have to contest the will in the county where it has been offered for probate, so figuring out the right venue is an early and important step. Usually that is the county where the decedent resided and passed away. It can get more complicated when, for example, an elderly parent lived in San Antonio and owned property around Bexar County but spent their final months in medical care in another county. In a case like that, there may be more than one county where the will could be offered for probate.

This is also where having qualified counsel helps. Individuals, and frankly some attorneys, can be sneaky about offering a will for probate in a proper but out-of-the-way county, hoping the people who should be beneficiaries do not find out in time. Part of our job is helping you identify and monitor every county where a will could be filed, so a probate does not slip through without your knowledge.

What happens to the estate if a will is found invalid?

If a will is found invalid and set aside, the estate passes under the person’s most recent valid prior will, if one exists. If there is no valid earlier will, the estate is distributed under Texas intestate succession, the framework set out in the Texas Estates Code.

Setting a will aside does not leave the estate without a path forward. If there is an earlier valid will, that document can control how the property passes. If there is no prior will, then the estate is handled under Texas intestate succession, which is the framework the Texas Legislature has set up to distribute a person’s property when there is no valid will. Which of those applies depends entirely on the facts, and it is one of the first things we map out with a client so everyone understands what a successful contest would actually accomplish.