A will contest asks the court to deny probate of a will, or to set aside one that has already been admitted, on grounds such as improper signing, lack of testamentary capacity, undue influence, or forgery. In Nueces County these cases are heard in the county courts at law. This page explains where a contest is filed, the deadline to bring one, who has standing, and how juries work in these courts.
Nueces County has no statutory probate court. Government Code §25.1801 creates five County Courts at Law, and §25.1802(a)(5) gives them jurisdiction over the estates of deceased persons. Will contests and other probate cases are heard there. These are not probate-only courts. The same judges hear other civil matters, so a contested estate shares the docket with unrelated cases.
Probate filings go to the Nueces County District Clerk, not the county clerk. Section 25.1802(n) makes the district clerk the clerk of the county courts at law for these cases and requires a separate docket for each court. In most Texas counties the county clerk keeps the probate records, so lawyers who do not practice here regularly sometimes file in the wrong office.
Section 25.1802(a)(6) also gives the county courts at law concurrent jurisdiction with the district court in actions by or against a personal representative and in actions involving testamentary and inter vivos trusts. When a will contest comes with claims against the executor, those claims can usually be brought in the same court.
Tex. Gov’t Code §§25.1801, 25.1802(a)(5), (a)(6), (n).
Estates Code §256.204 gives an interested person two years from the date a will is admitted to probate to file suit contesting it. There are two exceptions. A suit to cancel a will for forgery or other fraud may be filed within two years after the forgery or fraud was discovered, and an incapacitated person may file within two years after the incapacity is removed. A contest filed after the deadline is barred.
Most contests should be filed well before the two years run. The evidence in these cases usually includes medical records, the drafting lawyer’s file, and testimony from the witnesses and notary who were present at the signing. Records can take months to obtain by subpoena, and witnesses become harder to locate. If the executor is selling or distributing estate property in the meantime, that property may be harder to recover later.
If the will has not been admitted yet, you can oppose the application. The person offering the will then has the burden of proving the requirements of Estates Code §256.152.
Tex. Est. Code §§256.204, 256.152.
Only an interested person may contest a will. Estates Code §22.018 defines that term to include an heir, devisee, spouse, creditor, or anyone else having a property right in or claim against the estate. A child left out of a will usually has standing as an heir, and a beneficiary under an earlier will usually has standing through that will. An unmarried partner who is not an heir and is not named in any will usually does not.
The other side often challenges standing early. We confirm it before the client spends money on discovery.
If the dispute is about who the heirs are rather than which will controls, it is a different proceeding. See contested heirship in Nueces County. If the will is valid and the problem is how the executor is handling the estate, see removing an executor.
Estates Code §55.002 gives a party in a contested probate proceeding the right to a jury trial. Many will contests are tried to a jury, because capacity and undue influence usually turn on the credibility of the witnesses.
In a Nueces County court at law, a jury has six members unless the constitution, Government Code §25.0007(c), or other law requires twelve. That is a smaller panel than many lawyers expect in a case of this size, and it affects jury selection and how the case is presented. If there is an argument for a twelve-member jury in a particular case, we raise it in writing well before trial.
Tex. Est. Code §55.002; Tex. Gov’t Code §25.1802(o).
Kreig LLC is a probate litigation practice. We represent people contesting wills and people defending them, and we handle the executor removal and fiduciary claims that often accompany a contest.
We serve clients in Nueces, San Patricio, Kleberg, Aransas, and Jim Wells counties from our office at 710 Buffalo St., Suite 802, Corpus Christi, by appointment.
If a will has been filed or admitted in Nueces County and you believe it does not reflect your parent’s wishes, call soon. The two-year period under Estates Code §256.204 runs from the date the will is admitted.
The first consultation is short and free.