How Long Do I Have to Contest a Will in Texas?

Under Texas law, a party can contest, or challenge, a last will and testament at any time after the will is executed, ‌for up to two years after it is admitted to probate.‌

‌Any party with standing, meaning a party who is an “interested person,” can contest a will.‌ This means any person who is set to receive assets under the terms of the will, someone who receives real property through a will or a spouse.

A party with a claim against an estate, like a creditor, can contest a will as well. An interested party can also be an individual who is concerned about the welfare of an incapacitated person, such as an elderly adult impaired by physical illness to the extent that they cannot effectively manage their estate.

A party who is interested in the welfare of an incapacitated person upon whom another person has committed a wrong like forgery can contest the validity of a will.

Contesting a will in Texas can involve arguing that the will should not be admitted to probate court, or it can be contested after the will is admitted to probate court. Typically, the answer to the query “how to contest a will in Texas” is that the party should file a petition to contest the will in probate court.

‌The cost of filing a will contest varies depending on the filing fee of the county in which the probate court sits and the cost of the contestant’s attorney’s fees.‌

In Hamilton County, the fee to file an adverse action in probate, like a will contest, is $95. In Dallas County, the fee is $120. A party is not entitled to free legal services for a will contest. The cost for a probate attorney depends on the difficulty of the case and the area in which the attorney practices.

An in terrorem, or “no contest,” clause is language in the will that warns a person who contests the will that they could see their distribution of assets as a beneficiary revoked for contesting the will.

The in terrorem clause takes effect if the person who files the will contest is unsuccessful in their attempt to have the will invalidated. If the person who files the will contest is successful, the court will not revoke their distribution.

A court can revoke a person’s distribution in whole or in part if the court finds a concern with the will. The language of a will usually explains what happens if a person’s distribution is revoked. Typically, the assets that would have gone to the contesting person go back into the residue of the deceased person's estate.

In Texas, a will must satisfy certain requirements to be a valid legal document. These include:

• Person making the will must be 18 years of age or older at the time the will is made, is or has been married, or is a member of the armed forces of the U.S., an auxiliary of the Armed Forces or a member of the U.S. Maritime Service.
• Person must be of sound mind when they make the will (had testamentary capacity to make the will).
• Will must be in writing.
• Will is signed by the testator (person making the will) in person or by another person on behalf of the testator, in the testator’s presence and under the testator’s direction.
• Will is attested (certified) by two or more credible witnesses who are at least 14 years old and who subscribe (sign) their names to the will in their own handwriting in the testator’s presence. (A credible witness is one who does not stand to receive property or a financial benefit under the will.)

The exception to the rule regarding two witnesses is in the case of a holographic will (written wholly in the testator’s handwriting), which does not have to be attested by subscribing witnesses. In Texas, a will does not need to be notarized to be valid.

‌A will that does not meet all of these requirements can be invalidated.‌ For example, a will that has not been signed by two or more credible witnesses and is not a holographic will can be invalidated.

A will can also be held invalid in Texas if the will was made under conditions that cause it to be void. These include:

• ‌Undue influence:‌ A person coerces an individual to sign or modify a will against their wishes. For example, an individual who delivers medication for an elderly adult threatens to withhold that medication if the elderly person doesn’t include them in their will. The court would find that the person exerted undue influence upon the elderly adult.
• ‌Fraud:‌ A person commits a fraudulent act with regard to a will if, for example, one person asks another to sign a home warranty contract, but the contract is actually a will worded to disguise that it is a will. The court would find that the first person committed fraud.
• ‌Forgery:‌ A person commits forgery by signing for another party, without their knowledge and consent, and/or not in their presence or under the party’s direction. For example, a person signs the other party’s name to a will without informing the other party.
• ‌Revocation:‌ The testator revoked the will before they died. They can do this by drafting a subsequent will, destroying the will or causing the will to be destroyed when they (testator) were present in the room. For example, a testator tearing up a will would be an act of revocation. If the testator was in the room and told their friend to tear up the testator's will and the friend did so, this would also be an act of revocation.

The Texas probate court can invalidate a will in whole or in part if the will was made or modified through undue influence, fraud or forgery. If there is an earlier will, the court can admit that previous will to probate if it meets the necessary legal requirements for a will. If there is no other will, the estate of the decedent will be distributed according to Texas’ intestacy statutes.

The state's intestacy laws provide that the person’s estate will be distributed to their closest family members in a certain order. This usually includes their surviving spouse and children.

Most of a person’s property passes through their will, if a valid will exists. Certain assets, like bank accounts and insurance policy proceeds, pass in other ways, such as according to the terms of an insurance policy or a joint bank account with a surviving spouse. In that case, the surviving spouse automatically takes the funds in the joint account.