The best time to challenge a will is before it enters probate. At this point, the executor and beneficiaries have the legal burden to prove the will is valid under Texas law. This includes proving that the testator was of sound mind when she made the will. Contesting a will before it enters probate can stop the entire process. There is a two-week waiting period when a Texas probate court receives a will and an application to probate it. During this time, a notice is posted at the courthouse advising when the waiting period expires. If you don’t challenge the will during this time, the court opens probate and the burden to legally prove that something is wrong with the will shifts to you.
Probate officially opens in Texas with a hearing during which the court declares the will to be valid and appoints the executor. After this point, Section 93 of the Texas Probate Code gives you two years to contest it, but there are some exceptions.
Frauds and Forgery
One exception to the two-year statute of limitations is if you have reason to believe that the will is a fake or forgery. You then have two years to prove it after the evidence of fraud comes to light.
Discovery of a Second Will
Sometimes, after a will is admitted to probate, another will left by the testator is discovered. If the new will is dated after the one admitted to probate, you have four years after finding it to submit it for probate. This automatically challenges the first will. However, if the will is dated before the original will, then the two-year statute of limitations from the date the first one entered probate still applies.
In 2010, the Texas Supreme Court ruled that a testator's children have up to four years after probate of an estate closes to make a claim for an inheritance if they did not know during the probate period that they were entitled to a share of the estate. This law generally applies to offspring who were put up for adoption or born outside of marriage and did not know who their biological parent was until after probate closed.
If an heir is incapacitated during the two-year probate period and is unable to contest the will because of the incapacity, she has two additional years to make a challenge after she regains capacity. Minors are considered incapacitated because they cannot legally file a lawsuit. Therefore, they have two years after reaching the age of majority to contest a will.