Probate Attorney in The Woodlands: Stilwell, Earl & Apostolakis, LLP

Probate/Disputes

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Estate litigation almost always features conflicts over the capacity of the person who passed away and whether what the will says was their desires or was really somebody else’s desires, potentially involving coercion of the testator or the person who had the will to sign off. These are the most common disputes, often leading to various other legal conflicts among family members, but those are the legal ones.

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When people have concerns about whether or not a particular will is valid, the kinds of challenges that we see made are, first, does the will meet all of the requirements under the statutes in Texas for the way it is prepared? In Texas, we have holographic handwritten wills and typed wills, each with different requirements. So, we frequently look to make sure that the wills have met all of the requirements in the statutes to be valid.

Second, we look at whether or not the person had capacity. Questions arise about whether they had the mental ability to make a will. In Texas, there’s a four-part test that we use to determine if they had the proper capacity or not.

A third kind of challenge that we see to wills is whether or not the person making the will was unduly influenced by a family member, friend, or caretaker. This means they may have been coerced into signing a document they wouldn’t have signed otherwise due to duress, coercion, poor health, not understanding the document presented to them, or other factors.

The last issue we encounter isn’t so much related to wills but involves beneficiary designations on bank accounts, retirement accounts, or life insurance policies. Occasionally, we encounter forgeries or documents signed by someone other than the asset owner without proper authority to do so.

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There are two main deadlines for estate litigation that individuals should consider. The first deadline is related to will contests. At most, individuals have two years from the date the will is admitted to probate to file a contest against that will.

However, there’s also a softer deadline to keep in mind. If the contestant, the person who wishes to contest the will, files the contest before any will is admitted to probate, they can benefit from various procedural advantages. These advantages are lost if they wait until a will is admitted. Therefore, even though a contest may still be considered timely after the will is admitted, it may become more challenging or costly to bring the contest at that point.

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A claim or defense must be supported by admissible evidence. Many people are familiar with concepts from television like hearsay and relevance, which are covered by Rules of Evidence. Additionally, there are rules regarding expert testimony, and in some cases, experts may be required to testify. There’s also a rule often referred to as the “dead man statute,” which is a nickname for a rule of evidence governing the admissibility of testimony about what a deceased person has said. All of these factors need to be taken into consideration when determining what evidence will be presented at trial.

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Probate is the court process to change the title of assets from a person who has died to his or her beneficiaries.

When a person who dies has a will, a court must determine its validity and officially appoint an executor to carry out the terms of the will. Typically, the person named in the will to serve as an executor is appointed, but occasionally a different choice is required. If a person dies without a will, we can help with probate proceedings to determine the person’s heirs and to appoint a person to administer the estate.

Whether or not an estate needs to go through probate depends on the nature of the assets and how they are titled. There may be easier probate methods that might meet a particular client’s needs (sometimes including small estate affidavits, or probating a will as a muniment of title only).

Our firm has extensive experience handling probate matters of all kinds. We will assist you with your probate legal needs, including:

Determining the right process for your circumstances;
Having an executor appointed by the probate court, and if there was no will, obtaining a ruling from the court to determine the rightful heirs;
Filing all necessary court documents;
Collecting assets of the estate and obtaining valuations;
Requiring creditors of the estate to make proper claims to resolve debts and expenses;
Guiding the filing of estate-income and estate-tax returns;
Inventorying assets; and
Changing titles, preparing deeds and distributing assets according to the will -- or if there was no will, according to the laws of Texas.

Sometimes families have disputes when someone dies. We have extensive experience handling probate disputes both in court and trying to resolve issues without the necessity of court. We handle every kind of probate dispute, including will and trust lawsuits; breach of fiduciary duty claims; will contests; claims of undue influence over the person who died; lack of testamentary capacity; will forgery; validity of wills, codicils and beneficiary designations; interpretation of wills, trusts and beneficiary designations; issues with pre-marital agreements; mishandling of estates; interpretation of charitable gifts; heirship disputes (including paternity) and many other types of will, trust and intestacy disputes.

We try to resolve estate disputes without going to court – including using alternative dispute resolution measures (like mediation, arbitration and family settlement agreements) but also handle matters in court when disputes cannot be resolved prior to then.

Attorneys Who Serve This Practice Area

*Attorney Robin Apostolakis is Board Certified in Probate by the Texas Board of Legal Specialization.