Fighting With Family: What to Know About Probate Litigation

By: Kristen Zerega
PublishedMar 26, 2024
10 minute read

Litigation of any kind is unpleasant, especially when it involves family members fighting over a deceased loved one’s estate. Handling probating your family member’s estate during this stressful time can further complicate your grieving process. This is where our Probate Team hopes to alleviate some of these burdens. Whether you want to protect a loved one’s assets or obtain the ones that are rightfully yours, we’re here to navigate you through that process. 

In this guide, I’ll explain everything you need to know about probate litigation in Texas. Learn what it involves, when it’s necessary, and how you can come out on the other side so that you can properly mourn your loss. 

Bottom Line: 

You don’t have control over how your loved one planned or didn’t plan their estate. The important thing now is to focus on resolving your matter as seamlessly as possible.

In this article:

Probate Litigation

What is Probate Litigation? 

Probate litigation is a lawsuit filed by an attorney in probate court seeking to resolve a legal dispute that’s come up during the formal handling of a deceased person’s assets.

What Disputes Belong in Probate Court?

There is no single dispute that calls for probate litigation. Every family’s situation is different. Fortunately, probate litigation is flexible enough to accommodate a number of contentious disputes. Here are some of the issues clients face when they seek my help with a probate matter. 

Will contests

One of the most common probate disputes involves the division of the estate of a person who has died, or a decedent. Challenges to a decedent’s will can stem from various reasons. Let’s explore some of the circumstances that can prompt objections to a will’s validity. 

Three reasons wills are often contested

While each situation is different, in my experience, some types of interpersonal issues are more likely to come to a head during the probate process and may require litigation to resolve. For instance:

  • Sibling Rivalry – A sibling who perceives themselves as less favored may look for grounds to challenge the provisions of the will. 
  • Blended Families – A parent remarries and neglects to create or update their estate plan. This mishap can lead to unintended litigation between biological children, new spouses, and even step-children.
  • Elder Abuse – Elderly individuals are at risk of being manipulated by caregivers, new confidantes, and even relatives. Individuals with a real stake in the estate now must prove undue influence. 

Again, each family’s situation is different. Now that you know what situations are more likely to lead to a dispute, let’s explore the legal arguments interested persons may try to make in court. 

Undue influence

In Texas, exerting undue influence means pressuring someone to the point that it robs them of their ability to make their own choices. 

In this situation, the contestor would argue that the will doesn’t reflect the decedent’s true wishes but rather those of the person who coerced them. 

In 1963, the Texas Supreme Court stated that undue influence can come in the form of “force, intimidation, duress, excessive importunity or deception,” Rothermel v. Duncan, 369 S.W.2d 917.

To prove undue influence, the interested person must be able to demonstrate the following: 
  • Someone pressured the person drafting the will to award portions of their estate in a certain way;
  • The pressure was so strong it affected the decedent’s ability to think clearly when they signed the will; and 
  • The decedent wouldn’t have signed the will in this form if they hadn’t been pressured to do so. 

In most cases, the contestant bears the burden of proof to show undue influence. As the following case shows, a will cannot be set aside simply because someone doesn’t like what it says. 

Case 1: Not Enough Evidence Undue Influence Occurred

Just because someone is terminally ill doesn’t mean they can’t recognize what’s going on around them. The impetus for Est. of Davis, 920 S.W.2d 463 (Tex. App. 1996), writ denied (Nov. 26, 1996) was that there was a conflict between a mother and her adult child before the mother died. Originally her will included both of her children, but this conflict around her health and her husband’s death was so intense that she ended up removing one of them from the will entirely. 

When she died, the adult child who was removed contested the will, claiming it was a product of undue influence brought about by the other sibling. This case made its way to trial, and the trial court ruled in favor of the sibling who was removed from the will. However, the Court of Appeals reversed this decision, holding that there was insufficient evidence that the other sibling actually exerted undue influence.

Lack of Testamentary Capacity

Testamentary capacity refers to the mental ability to create a valid will. Simply put, it means the person making the will has to have been mentally sound enough to have understood what it is that they were doing at the time of signing. Tex. Estates Code § 251.102

To have testamentary capacity, the person making the will needs to know:
  • What they own (houses, cars, savings, etc.); 
  • Who they want to inherit their assets; and 
  • What financially dependent close relatives they have

The person making the will must also understand how each of these facts informs the other. In other words, they need to remember these factors long enough to make a decision that makes sense. 

The burden of proof is again on the will’s contestant to show a lack of testamentary capacity. One way they might try to prove a lack of testamentary capacity is to retain a medical expert or have the decedent’s doctor or psychiatrist testify to this fact. If a contestor brings a medical professional forward to testify about testamentary capacity, their testimony needs to be about more than just old age. The following case explains why: 

Case 2: Old Age Isn’t Evidence of a Lack of Testamentary Capacity

Being old and forgetful doesn’t automatically mean someone is incapable of making a valid will. Fortunately, Texas established this in Rich v. Rich so that close relatives can use neither age nor mental weakness as proof that a testator lacked testamentary capacity at the time the will was created. 

In Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980), the testator’s grandson filed an application to probate his grandmother’s will, but the testator’s son contested it alleging she lacked testamentary capacity. The court originally ruled in favor of the son, but on appeal, the court noted that upon examining the entire record, “the court found the testimony did not show testamentary incapacity. It appeared to the court that the decedent was not suffering from an insane delusion when she executed her will, but was merely expressing her desire to not reward her son.”

I’ve seen medical professionals take the stand and be compelling expert witnesses, but we cannot forget about the attorney involved in actually drafting the will. 

Case 3: The Attorney Who Drafted the Will Can Testify

Having the attorney who drafted the will testify can be important for several reasons, one of which is speaking to their client’s testamentary capacity at the time of signing.

In re Est. of Coleman, 360 S.W.3d 606 (Tex. App. 2011) involved a dispute between siblings over the administration of their mother’s estate. The son filed the application to probate her will. But his sister contested, arguing that her mother lacked testamentary capacity when she executed the will. The trial court ruled in the son’s favor, and the sister appealed. Testimony from the attorney who drafted the will was pivotal to the case, as it demonstrated the decedent understood she was executing her will and was of sound mind at the time. The Court of Appeals upheld the trial court’s decision.  

Failure of Formality

An interested person can also contest a will based on a belief that it wasn’t done correctly. In Texas, there are proper legal steps that need to be taken for a will to be valid. This includes:

  • Putting the will in writing; 
  • Signing the will; and 
  • Having two witnesses watch the signing and sign the document. Tex. Estates Code § 251.051

In my experience, suspicion of falsified signatures is a common reason for interested parties to enter into probate litigation. Just as doctors and lawyers can offer credible testimony in these types of cases, so can the witnesses to a will’s signing. 

Who Can Contest a Will?

Everyone does not have a legal right to contest a will. In Texas, this right only belongs to interested persons. Tex. Estate Code § 22.018 considers interested persons to be:

  • Devisees;
  • Heirs;
  • Spouses;
  • Creditors;
  • Anyone with a property right in or claim against the estate; or
  • Anyone with an interest in an incapacitated person’s welfare. 


A devisee is someone named in a will to receive specific assets. You may know them as beneficiaries. They don’t have to be related to the person who died. It could be a friend or colleague or even a charitable organization. Tex. Civ. Prac. & Rem. Code § 103.0536

Devisees are considered “owners” of the estate outlined in a will. They can initiate the probate process by submitting the will to probate. A beneficiary has more power than an heir. 


An heir is someone legally entitled to inherit your assets if there is no will, which is more common than you might think. 

Heirs are the people related to the deceased person through blood or marriage, including:

  • A spouse (Texas law gives spouses their own interested persons category)
  • Children (biological or adopted)
  • Parents
  • Siblings
  • Extended family (nieces, nephews, cousins, etc.) Tex. Estates Code § 22.015

Texas law treats spouses as an interested party separate from heirs, though spouses can still be considered heirs. An heir or a spouse can be named a beneficiary in the will.

Beneficiaries Take Priority Over Heirs (If There’s A Will)

In most cases, the court will prioritize the wishes of the deceased as expressed in a valid will. After all, a will can be used as a tool to disinherit one or more heirs. Tex. Est. Code § 251.002; Texas Estate Planning § 14.112

If there is no will, spouses and heirs will take precedence. 

Most people think that debts die with the deceased. However, if the deceased has outstanding debts, they must be paid before assets are transferred to the heirs. 


For the most part, bereaved spouses tend to receive special protections in Texas aside from being heirs. This is because Texas is a community property state. Tex. Fam. Code § 3.003

Thus, if no prenuptial agreement is in place when a spouse dies, the surviving spouse is entitled to 50% of the property that was acquired during the marriage. Even if the property is considered to be the deceased spouse’s separate property, the surviving spouse can continue to live there. 

Spouses Take Priority over Heirs (If There Isn’t A Will) 

Additionally, Texas has what’s called the homestead exemption. If the decedent is survived by a spouse, minor child, or adult child living in the home, his or her homestead and up to $100,000 in personal property passes free from claims of general creditors of the estate. Tex. Prop. Code § 42,002(a) This exemption gives a surviving spouse the right to keep living in their home after a spouse’s death. It becomes important when considering the rights of heirs such as children. 

If there is no surviving spouse but there are surviving children, they are entitled to the other half of the shared property that went to the surviving parent. However, the surviving spouse overrules any other heirs in their claims to the property. 

A Transfer on Death Deed Can Make Things Easier

A transfer on death deed for a house can reduce the time and effort required to transfer assets following an individual’s death. This allows for a direct transfer of the property title to the person who is named without additional hassle. 

Not All Assets Pass Through Probate Court

A surviving spouse may be entitled to other assets that aren’t subject to probate through payable-on-death accounts. These assets automatically transfer to the owner’s beneficiary upon death, such as life insurance policies and retirement accounts. Depending on the situation, it can help a beneficiary receive these assets immediately since they do not need to pass through probate court. Whether the situation is beneficial to the surviving spouse depends on whether they are named as a beneficiary of such an account.

If the surviving spouse is named the beneficiary, they will likely not have a problem claiming those assets.

Misinterpretations of a Will

The language in wills and trusts can be confusing. A few words can make a huge difference between who receives certain assets and who doesn’t. 

Unclear wording

Sometimes, wills aren’t written clearly, or maybe circumstances have changed since the will was drafted. In these cases, a judge will decide what the testator intended based on the will’s wording.

It’s important to note that the judge is going to focus on what the person who wrote the will actually wrote, not what they may have meant to say. The judge is going to look at the will as a whole to make sense of all of its parts and determine how best each part works together. 

Texas law assumes that the decedent wanted to give away their assets. So if the will doesn’t direct all of the assets to a devisee, the judge will likely assign any residual items in an estate to the devisee. 

Claims an Executor Mishandled Estate

The people who help administer probate proceedings can also become entangled in litigation if things go sideways. The executor of an estate is the person named in the deceased’s will to carry out their wishes.
The executor’s responsibilities include: 
  • Filing the necessary documents in probate court;
  • Overseeing the probate process;
  • Managing the assets of the deceased;
  • Giving notice to creditors and devisees of the estate;
  • Paying the bills of the estate and creditors of the estate; and 
  • Defending the will from lawsuits.
Their duties are the same as that of a trustee, which include: 
  • Locating trust assets;
  • Protecting trust assets;
  • Filing trust taxes; and 
  • Distributing trust assets.  

In general, whoever assumes this role has a fiduciary duty to protect the devisees’ interests. Depending on your interests, the executor will be your ally or your adversary.

Gross Misconduct

Gross misconduct can lead to an executor’s discharge from their duties. The Texas Supreme Court has held that “gross misconduct” is “glaringly obvious” or “flagrant misconduct”. For instance, an executor can be removed for misapplying property that’s been committed to their care and/ or making accounting errors. 

That being said, a good-faith disagreement between interested persons and the executor doesn’t translate to actual misconduct. 

Guilty of gross misconduct

Executors are required to make any legally required accounting. If money goes missing on an executor’s watch, they may be liable to a person interested in the estate for the amount of any claims or the value of the property lost due to neglect. This can be grounds for removal under Texas law. Tex. Estates Code § 404.0035

Incapacitated Trustee/Executor

Fiduciary duties include acting loyally and in “utmost good faith.” As such, Texas law provides that a person is not qualified to serve in a fiduciary role if they are:

  1. incapacitated;
  2. a convicted felon unless they’ve been pardoned or had their civil rights restored; 
  3. a nonresident of the state who: 
    1. is a natural person or corporation; and
    2. has not:
      1. appointed a Texas resident to act as an agent for all related probate proceedings; or
      2. filed the appointment with the court;
  4. a corporation not authorized to act as a fiduciary in Texas; or
  5. a person whom the court finds unsuitable. Tex. Estates Code § 304.003

This means the burden of proof is on the person carrying fiduciary duties to keep all interested parties informed throughout the probate process. 

Conflicts of Interest

A person in charge of handling a will can’t have a major conflict of interest, meaning they can’t personally benefit from the estate if it harms others’ inheritances. 

Conflicts of interest for executors may include taking something from the deceased person they believe to be rightfully theirs. 

It’s important to note, however, that not all conflicts automatically disqualify an executor from their role. For instance, someone can be named an executor even if the deceased owed them money. It’s also quite common for family members to be named executors despite disagreements about the inheritance. 

The key thing to remember here is that executors can’t unfairly use their power for their gain at the expense of other interested persons. 

Misuse of Power of Attorney

Probate law also involves powers of attorney. There are different types of powers of attorney, but, simply put, it’s a legal document that allows someone to make decisions for an incapacitated person.  Disputes can arise for various reasons.  Siblings may disagree about who will have power of attorney. Another common issue is suspicion of misconduct by the agent, the individual who has power of attorney. 

A probate attorney can help individuals and families determine their legal options, including taking legal action. 

What to Expect From Texas Probate Litigation?

Probate litigation prolongs the probate process for all parties involved, which can come as a surprise to some people. Depending on the circumstances, it begins within four years of the decedent’s death and can take years to resolve.

Probate Litigation Takes Time

In Texas,  the will along with an application for probate must be filed within four years of a decedent’s death. After a will is admitted to probate, interested persons will be notified and given a few weeks to contest the will. If no one challenges the will, the court will confirm that it is valid and officially give the executor legal authority to act as executor and begin settling the estate. 

If additional information is discovered related to fraud or forgery later, the contestant has two years from the time of discovery to file a contest. 

Hire a Probate Attorney to Represent You in Court

Whatever side of the litigation you find yourself on, hiring a probate attorney to represent your interests can save you time, money, and stress during this difficult time. 

Our probate attorney can help you resolve disputes between you and your loved ones so you can begin to heal. Call 214-884-3775 to begin your case assessment. 

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