Dallas Estate Litigation Blog

Contesting a will is a process that seeks to invalidate the will of a deceased individual.

A will contest is never a straightforward procedure. Only certain individuals have legal standing to contest a will, and they face a complicated set of legal procedures and strict time constraints. Furthermore, some people who have valid reasons to believe that they should contest the will are hesitant to do so for fear that other family members will perceive them as greedy or manipulative.

However, there are instances where genuine grounds to contest a will exist. In these situations, you deserve the opportunity to create a resolution that is fair for everybody involved. If you have pressing questions about your case, don’t hesitate to contact our legal team today.

Who Is Eligible to Contest a Will in Texas?

In order to contest a will, an individual or entity needs to have standing, meaning that the outcome of the will contest will directly affect them. You have standing if you are:

• A named beneficiary in the will
• A named fiduciary in the will (if you represent an entity such as a charity or a bank)
• An intestate heir (someone who is eligible to inherit from the decedent’s estate if a will was not written)

Intestate heirs are determined through a list of kin known as intestate succession. Unmarried partners, friends, or charities are not eligible to be intestate heirs. Contact us today.

Grounds for Contesting a Will in Texas

If you fall into one of the above categories, you are eligible to contest a will in Texas on the following grounds:

• Lack of capacity – Texas law requires that the testator (the person who made the will) have full mental capacity and competency at the time the will was created. If you can prove that the testator lacked capacity due to conditions such as dementia, Alzheimer’s, or a mental illness that incapacitated them, the will may be invalidated.
• Revocation – If you can prove that the will was revoked and a subsequent will exists, you can contest the will that has been revoked.
• Undue influence – This is when a testator was compelled or coerced to execute a will under pressure. Often this occurs under the influence of a friend, health care worker, advisor, or relative. It is also frequently the case that undue influence is applied when the testator is functioning with a diminished physical or mental capacity.
• Fraud – If a testator was defrauded into executing a will that does not represent their true wishes, the will could be contested. For example, if one beneficiary told lies about another potential beneficiary with the intention of having that person written out of the will and it worked, this would constitute fraud.
• Undue execution/lack of proper formalities – For a will to be valid in Texas, the will must be signed by the testator or by the testator’s appointed agent, who must sign it in the testator’s presence. Furthermore, two credible witnesses above the age of 14 must attest to the will and sign it in the presence of the testator. If the will is missing any of these requirements, or if it was drafted improperly, it can be contested.
• Mistake – A will can be invalidated if the testator executed it by mistake.

What Are the Time Constraints for Contesting a Will?

In Texas, you have two years to contest a will. This time starts from the date that the will was admitted to probate rather than from the date of the decedent’s death. This time limit is necessary so that the decedent’s estate can be distributed in a timely fashion. Contact us today.

Replacing an Executor

While many will contests focus on changing or adding beneficiaries, sometimes the key issue is the fact that the will’s executor has breached their fiduciary duty and should be replaced.

The fiduciary duties of an executor include:

• Organizing documents and taking an inventory of the decedent’s assets
• Distributing assets
• Distributing property that is not subject to probate
• Managing benefits claims (e.g., life insurance, Social Security)

If the executor has not been organized or ethical in fulfilling these duties, you can move to have them replaced.

Contact an Experienced Contested Will Attorney

If you have reason to believe that there are problems with a loved one’s will, either due to mistakes or foul play, it is important that you have legal representation on your side. The experienced Dallas contested will attorneys of Staubus and Randall have the knowledge and skill necessary to handle the complicated legal processes involved with contesting a will. We will fight for your best interests in court, and we will keep you updated with frank and clear assessments of our progress at every step of the way.

Remember that time is of the essence when contesting a will. Contact us today at 214-691-3411 for a case evaluation.

If you are the executor of a will or you’re trying to determine what happens to a family member’s assets after their passing, you may be asking yourself whether you need to hire a lawyer to help you with this process. The probate process can be complex, depending on your situation and the size of the estate, and it’s important to have guidance from an experienced team of attorneys.

The Dallas Estate Litigation Lawyers from Staubus and Randall can support you through the entire process, relieving you of the stress that comes with managing a family member’s estate.

What Does a Probate Attorney Do?

A probate lawyer specializes in estates and legal issues regarding probate. Probate is the legal process by which a deceased person’s belongings are transferred to family members or other beneficiaries after death. A will that directs how the estate should be distributed makes the process simpler. If the person died without a will, some of the property may need to go through the probate process in order to finalize the estate.

A probate attorney can assist with some of the following tasks related to management and finalization of an estate:

• Reviewing wills
• Distributing real estate and other property to beneficiaries
• Paying taxes
• Resolving life insurance issues
• Cataloging assets of the estate
• Appraising the value of real estate
• Settling disputes with family members or other beneficiaries
• Paying debts owed by an estate
• Filing documents with the probate court

The probate process includes many steps and deadlines, with a lot of paperwork and legal terms to understand. It could be a simple process or it could go on for a very long time.

An experienced probate attorney can help guide you through the probate process and can make sure you don’t miss an important step that could be costly later on. In the case of a dispute, a knowledgeable probate lawyer is essential. In a difficult and emotional time like this, it’s crucial to have an experienced professional who can provide the support you need.

Why Hire Staubus and Randall?

The probate attorneys at Staubus and Randall have been handling the estate needs of Texas clients for decades. Our firm specializes in estate litigation, guardianship, trust planning and trust litigation, and we excel in estate planning and asset protection.

We have many years of probate courtroom experience, and we have a record of success with high-stakes will contests and complex dispute resolution, as well as routine probate matters and estate administration. Staubus and Randall has achieved an AV rating, the highest legal rating from the law firm rating service Martindale-Hubbell.

What Property Doesn’t Need to Go Through Probate?

Property that was owned solely by the decedent or accounts in that person’s name only may need to go through the probate process in order to transfer to family members. Not all assets must go through the probate process, however. You may be able to avoid the probate process for the following types of assets:

• Retirement accounts, such as an IRA or 401(k), with a named beneficiary
• Wages or salary owed to the decedent
• Property in a living trust
• U.S. savings bonds that are co-owned
• Distributions from a pension plan
• Proceeds from a life insurance policy
• Vehicles with a transfer-on-death registration

Your probate attorney can review all of the assets in question and help you determine whether they need to go through probate. The assets may qualify for “small estate” procedures that avoid probate.

Are There Drawbacks to Doing Probate Without a Lawyer?

It is possible to probate an estate without hiring a probate lawyer. If the estate is simple, and many of the assets don’t need to go through the probate process, an attorney may not be required. However, debt payment, taxes, and asset distribution are all complicated processes on their own. Hiring an experienced probate lawyer like the ones at Staubus and Randall means that you can be sure that all the details are covered.

If the estate involves a business, commercial real estate, or is particularly valuable, a probate lawyer is a must. The State of Texas requires full court supervision for estates valued at over $75,000, and in most cases, you will need an attorney for this type of case. If there are disputes among family members regarding the estate, you will need a skilled lawyer.

Talk to a Dallas Probate Lawyer Right Away

Managing a will or an estate can be a complicated and arduous ordeal, even more so if you’re grieving the loss of a loved one. The Dallas estate litigation attorneys of Staubus and Randall have many years of experience in estate planning and asset protection. We have helped hundreds of satisfied clients with their estate planning and litigation needs and we can make the probate process as stress-free and simple as possible for you too. Call us today at 214-691-3411 or fill out our contact form to set up a consultation.

If you are in the process of writing your will or trying to determine how the property of a family member will be handled after their death, you may have encountered the term probate. Probate is the legal process by which a person’s estate, their property and possessions, are handled after they pass on.

In the probate process, a court officially recognizes a person’s death and determines how their assets are distributed among family members and other beneficiaries. If the deceased left a will to direct where their property should go, the procedure may be simpler. Some items do not have to go through probate, but others, especially those lacking titles or not named in the will, may have to go through this process.

How Does the Probate Process Work?

The probate process can be daunting to those without experience, but the good news is that compared to other states, probate in the State of Texas is relatively simple. The Texas probate process can be broken down into several steps:

1. Filing with the probate court – An application for probate is filed with the proper probate court for the county where the deceased was a resident.
2. Posting notice – Before a hearing is held regarding a probate application, there is a ten-day waiting period to allow for anyone to contest the will or the administration of the estate.
3. Hearing and validation – After the waiting period, there will be a hearing and the probate judge will ensure that the will is valid or verify that the deceased did not leave a will. The judge will then appoint an administrator for the estate or will verify that the executor is valid.
4. Inventory of assets – Within 90 days of the appointment of an administrator or executor, that person must compile a list of all the assets held by the estate and file it with the county clerk, in the form of a report known as an Inventory, Appraisement, and List of Claims. This report lists the estate’s assets as well as a reasonably accurate estimation of their value as of the deceased’s passing.
5. Notify beneficiaries – If the deceased left a will, the executor must notify the beneficiaries of the estate. If there was no will, the probate court must determine heirship. In the case of unknown potential heirs, it may be necessary to post notices in newspapers and at the courthouse.
6. Notice to creditors – The deceased may have unresolved debts, also known as liabilities—hospital bills, house or car payments, or other major expenses. The executor must notify creditors of the person’s death and allow them the opportunity to make a claim against the estate.
7. Dispute resolution – If family members or potential beneficiaries wish to contest the will, the probate court must hold a hearing before finalizing the estate.
8. Distribution of Assets – Once any disputes are resolved and the estate has been finalized, the assets are distributed to the beneficiaries.

Probate can be quite a lengthy process, and there are a lot of deadlines to stay on top of and paperwork to submit. An experienced probate attorney can help you through these steps and advise you on the best strategy along the way. If you are involved in an estate probate or dispute and are not sure whether you need the help of a probate lawyer, contact Staubus and Randall to set up a consultation about your case.

Common Terms Related to Probate

The probate process contains specialized legal vocabulary and concepts that you may find confusing if you’ve never experienced them. Here are a few commonly used terms.

• Administrator – When a person dies without a will and an executor hasn’t been named, Texas law requires that an administrator be appointed to manage the estate.
• Assets – Property with a monetary value held by an estate. Real estate, vehicles, clothing, jewelry, bank accounts, cash, and furnishings would all be considered assets.
• Beneficiaries – These are the recipients of the property distributed from an estate, whether family members, friends, or organizations.
• Decedent/Deceased – These terms refer to the person who has died.
• Estate – The assets that belonged to the deceased person are collectively known as the estate.
• Intestate – This term refers to an estate whose owner died without a will. A probate court must determine how to distribute the assets of such an estate.

An estate litigation lawyer from Staubus and Randall can explain any confusing terminology and answer any questions relating to your own probate case.

Speak with a Texas Probate Attorney Today

Managing your family’s affairs after the death of someone close is hard enough without all the extra strain of sorting out their estate. The probate process can be complicated, and mistakes could potentially be costly. You need a knowledgeable estate lawyer who can guide you through this process efficiently and with a minimum of stress.

The Dallas estate planning and litigation attorneys of Staubus and Randall have experience helping hundreds of clients with their estate, trust planning, trust litigation, and guardianship needs. We will be with you every step of the way to offer support and answer any questions you might have.

Call us today at 214-691-3411 or fill out our contact form to set up a consultation.

A power of attorney (POA) is a legal document giving your chosen attorney-in-fact or agent the authority to handle your affairs based on your best interests in specific situations. Terminal illness, cognitive decline, and traumatic accidents are a few of the common reasons creating a POA could be beneficial.

While drafting a POA, it’s crucial to outline what you want to happen in specific scenarios clearly. For example, if you’re in a car crash and end up in a coma, you should state how you want the situation to be handled. Depending on the type of power of attorney you create, your appointed agent can manage your business, financial, or medical affairs, or all three.

Abuse of a Power of Attorney

When you decide who you want to choose as your agent, it should be a person you trust completely. It should also be someone you know will carry out your wishes regardless of their feelings or opinions about them. Your designated agent could have access to your bank accounts and legally sign documents associated with your healthcare, financial affairs, and legal matters.

Although a power of attorney defines the agent’s role, their authority over someone else’s decisions can lead to abuse. If you become incapacitated, your agent could gift themselves with your assets. Or you might have to leave the country for a business trip, and your agent could decide to use your finances for personal gain in your absence.

Common Types of Power of Attorney Abuse

It’s an unpleasant and disturbing feeling when you realize the person you’ve entrusted with a significant responsibility has betrayed you. You thought they would always act in your best interests and protect you. However, you might have noticed signs that your chosen agent has violated your trust and abused their position in your life.

Power of attorney abuse can take many forms. The most common types you should watch for include:

• Identity theft – An agent can use the access they have to your personal information to open a new bank account, credit line, or investment account with your POA document.
• Breach of fiduciary duty – The agent or attorney-in-fact has a fiduciary duty to act in your best interest from the moment the POA becomes effective. If they breach their duty in any way, they could be liable for lost money or assets.
• Embezzlement – Under certain circumstances, a financial POA grants the agent authority over every financial aspect of a person’s life. With complete access, the agent can embezzle funds from your account into theirs or transfer property that is supposed to go to your named beneficiaries.
• Medical abuse – A medical power of attorney gives the chosen agent the responsibility of deciding your medical treatment when necessary. If you’re unconscious or incompetent, you can’t inform your doctors of the healthcare you want. Your agent might choose to move you into a nursing facility against your wishes or ask your doctors to use life-saving measures you don’t want.

Proving Power of Attorney Abuse Occurred

If you believe your appointed agent is abusing a power of attorney, you should take immediate legal action. You will need sufficient evidence to show the abuse occurred. With financial abuse, providing documentation showing the agent transferred money into their accounts without your approval or made unauthorized purchases with credit cards could be the proof you need.

It’s vital to hire an experienced power of attorney abuse lawyer to assist you with your lawsuit. If you want to recover the losses you suffered, you will need a knowledgeable legal team on your side to build a solid case against your agent. Your lawyer can also help you create a new power of attorney to protect you from abuse in the future.

Contact Staubus and Randall Today

Staubus and Randall has over 100 years of combined experience in estate planning and litigation. We can help you pursue legal action against the individual responsible for abusing their responsibilities as your POA agent. You should not suffer the consequences of their misconduct. We will provide the guidance and support you need to get through this devastating time in your life.

If you or your loved one was the victim of power of attorney abuse in Texas, do not hesitate to contact Staubus and Randall. We can review the circumstances to determine the available legal options and create a strategy to try to resolve the matter favorably. You can depend on our legal team to be your advocate and fight for the justice you deserve.

Call us at 214-691-3411 or reach out to us online today for your confidential consultation.

There is currently more wealth being transferred between generations than at any time in our nation’s history. According to the Center for Retirement Research at Boston College, it is estimated that the baby boom generation will inherit $8.4 trillion over their lifetimes. It is also clear that the number of wills being contested is on the rise. Factors including the blended family, and parents living longer and being cared for either by one of their children or by a private caregiver, can result in late-in-life changes to Last Will and Testaments, which reduce or cut out the shares of family members. This is one of the classic recipes for a will contest. Here is what you need to know if you find yourself in that situation.

When Can a Will be Contested?

A will cannot be contested prior to the testator’s death. After death, it is most advantageous to contest a will prior to the hearing to admit it to probate, which is normally within approximately two weeks after it is filed with the Court. By contesting the will prior to it being admitted to probate by the Court, the burden of proof as to the testator’s mental capacity is placed on the person offering the will for probate, rather than on the contestant, which can be a significant advantage for the contestant.

Once a will has been admitted to probate, a will contestant has up to two years from the date of the contested will’s admission to file a will contest, or it is forever barred. If contested after the will has been admitted to probate, the burden of proof as to the testator’s mental capacity is on the contestant.

What are the Grounds for a Will Contest?

The primary grounds for contesting a will are lack of testamentary capacity and undue influence. In order to prove that a testator had the necessary testamentary capacity at the time the will in question was executed, the person offering the will, assuming the will is contested prior to it being admitted to probate, has the burden of proof to show:

1. The testator understood the business in which he or she was engaged, the effect of his or her act in making the will, and the general nature and extent of his or her property;
2. The testator knew his or her next of kin (the “natural objects of his bounty”); and
3. The testator had sufficient memory to collect in his or her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other and to form reasonable judgment about them.

In order to prove that a will is not valid because it was executed as the result of the exertion of undue influence on the testator, the contestant has the burden of proof to show:

Other potential grounds for a will contest are forgery, insane delusion, improper execution of the will, and fraud.

Important Evidence

Obtaining the testator’s medical records is critical to any will contest to evaluate and to establish the testator’s mental capacity and susceptibility to undue influence at the time of execution of the will. A forensic psychiatrist can also be important in interpreting these medical records. The testator’s financial records are often critical in assessing the testator’s ability to handle his financial affairs, his knowledge as to the nature and extent of his property, and any evidence that the testator was being financially exploited. Depositions of the attorney (if any) who drafted the will, the witnesses and notary to the Will, and any caregivers of the testator are essential.

Whether you are contesting a will or are defending a contested will, it is important to have a full legal team experienced in the unique evidentiary issues, rules, strategies, and necessary expert witnesses to effectively assess and litigate a will contest.

For more information on will contests, or on other estate litigation, trust and fiduciary litigation, guardianships, or closely-held business litigation handled by the firm, visit the firm website, www.srllp.com, where you may download two available white papers on will contests:

• “Undue Influence and Lack of Capacity: How Much is Enough?”
• “Anatomy of a Will Contest”

Over the years, having litigated a number of catastrophic tort claims, I have frequently been asked by clients, as well as by students in my tort class at Collin College, to explain the difference between a Wrongful Death Claim and a Survival Claim. I explain the difference between these two claims as follows:

• A Survival cause of action is something that belongs to the deceased for damages that he or she suffered before they passed away.
• A Wrongful Death cause of action does not belong to the deceased but instead belongs to the surviving spouse of the deceased, a child of the deceased, or a parent of the deceased.

The deceased person’s heir or the personal representative of their estate may bring a Survival claim. The claims that may be asserted are claims that the deceased person could have asserted had he or she survived. For instance, if a person was injured in a car accident due to the negligence of someone else and died a few hours later from those injuries, then their heir or their personal representative could assert a claim for the medical bills incurred and the pain and suffering that the person endured from the time of injury to the time of death. This is just an example of a portion of the damages that the personal representative of the estate or the heir of the deceased could assert. Any damages recovered pursuant to a survival claim are subject to the debts of the estate.

The damages recovered under a Wrongful Death claim are to compensate the surviving spouse, child or parent of the deceased for their loss. These damages typically include loss of financial support, loss of inheritance, mental anguish, and the loss of the relationship. Any damages recovered under a Wrongful Death claim are personal to the Plaintiff, and are not subject to the debts of the deceased.

Both the Wrongful Death claim and the Survival claim typically have a two-year statute of limitations. There are a few exceptions to this limitation, which can best be addressed with an attorney on a case-by-case basis.

In some instances, it is preferable to assert only a Wrongful Death claim as opposed to a Survival claim, assuming you are a surviving spouse, child or parent of the deceased and are also an heir of the deceased’s estate. Whether you have an individual claim and/or are an executor or administrator of an estate which holds a potential claim relating to the Decedent’s death, it is important to consult with an attorney regarding the decision as to whether to assert a Wrongful Death Claim, a Survival Claim, or both claims, as well as to the viability and value of these claims.

Joseph E. Legere’s practice is concentrated in Will Contests, Trust Litigation, Guardianship Litigation, Fiduciary Litigation, and Catastrophic Tort Claims. For more information regarding Mr. Legere’s litigation practice, please visit his Attorney’s profile page.