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Posts tagged "Wills/Probate"

Wills in Texas

A will in the state of Texas should be a requirement for any party who has had
more than one marriage and has children from their first marriage. This is because the
scheme for dissent and distribution of a person's property changes significantly when
there are children from a former marriage or relationship. If it is your intent to leave all
of your assets to your spouse and you have children not of that relationship your
children will take under the Texas Probate Code § 38 which entitles them to a share of
community property and your separate property, subject to a life estate by your current
spouse.

WHAT IS A WILL CONTEST?

A will contest is a challenge to probating what appears to be a basically valid Will. When a party believes that a Will is not properly admitted to probate they may contest the Will by filing an objection to the Will in the probate court. Once the objection to the Will has been filed the proponent of the admission of the Will to probate must prove that the deceased had testamentary capacity at the time that they signed the Will and that all proper formalities for signing a Will have occurred. Alternatively, the opponent of the Will may contest the Will on either this issue of whether there had been testamentary capacity and the formalities had been followed or they may contest the Will on the basis that there had been undue influence on the deceased at the time that they signed the Will. The burden of proof to prove testamentary capacity rests with the proponent of the Will, while the burden of proof for demonstrating undue influence or over-reaching lies with the opponent of the Will. Each case necessarily rests on the facts of that case and can only be properly evaluated by a lawyer who has experience with Will contests.