A will can be revoked at any time before the person’s death by creating a new will or by destroying the existing will. To destroy a will, the testator must physically destroy the original document or direct someone else to do so in their presence. Once a will is revoked, it is no longer legally valid.
This is the whole purpose of the will. It provides finality and certainty to the decedent that their wishes will be carried out.
But what about revoking a will after the decedent dies? You may be surprised to learn that this may, in some cases, actually be possible.
Overview of Texas Probate Law
Probate is the legal process that takes place after someone passes away to ensure that their assets are distributed according to their wishes. In Texas, probate is governed by the Texas Estates Code and the body of case law.
Probate courts in Texas have jurisdiction over the administration of estates, including the distribution of assets, payment of debts and taxes, and the appointment of guardians for minor children. The probate court is responsible for ensuring that the will is valid and that the executor, the person responsible for carrying out the provisions of the will, is fulfilling their duties.
The process of probate in Texas can be lengthy and expensive and usually requires that you hire a probate attorney. The process typically involves filing the will with the probate court, notifying creditors and beneficiaries, and valuing and distributing the assets according to the terms of the will.
The Importance of a Will
Having a will is crucial for anyone who wants to ensure that their assets are distributed according to their wishes after they pass away.
If a person dies without a valid will, their assets will be distributed according to Texas intestacy laws. In this case, the court will appoint an administrator to manage the estate and distribute the assets.
One of the main reasons for having a will is to avoid conflicts between heirs. Without a will, the distribution of assets is left to the distribution scheme set out in the Texas Estates Code. This law does not provide for no-contest clauses or any other custom language that may be needed to help avoid disputes between surviving family members. By creating a will, a person can specify exactly how their assets should be distributed with an eye toward avoiding any confusion or disagreements.
One only has to consider how transfers to minors are handled to see how this plays out. The minor child can receive an inheritance, but they cannot legally transact with the property once it is inherited. This can result in the natural guardian or caretaker taking possession of and managing the assets.
It may also require the appointment of a guardian who may also charge for their services. One can easily see that disputes over what the assets were used for, how they were managed, etc. frequently arise. This is just one scenario. Other scenarios that lead to disputes are transfers to surviving spouses when there are step-children, adopted children who may or may not inherit anything, and common-law spouses.
Types of Wills in Texas
In Texas, there are several types of wills that a person can create, each with its own specific requirements for validity.
The most common types of wills are what you normally think of–a legal document drawn up by an attorney and signed by the decedent and two witnesses.
A will can also be handwritten. A handwritten will, also known as a “holographic will,” is a will that is written entirely in the testator’s own handwriting. To be valid, a handwritten will must be signed and dated by the testator and must clearly express their wishes regarding the distribution of their assets. There is no requirement for witnesses for a handwritten will to be considered valid, but it must meet the other requirements of a valid will, such as the testator being of sound mind and at least 18 years old.
Regardless of whether it is a traditional will or a holographic will, once the decedent dies and the will is valid under state law, there are only specific ways it can be modified and changed.
Reasons for Changing a Will After Death
Unforeseen changes in circumstances
A will is a legal document that outlines how a person’s assets should be distributed after their death. However, there are situations where the original will may no longer reflect the testator’s wishes due to unforeseen changes in circumstances. For example, if the testator has a child after creating their will, they may want to include this child as a beneficiary.
Similarly, if the testator acquires new assets or loses existing ones, they may want to change their will accordingly. In such cases, changing a will after death may be necessary to ensure that the deceased’s wishes are properly carried out and all beneficiaries receive what they are entitled to.
Disputes among beneficiaries
Another reason why a will may need to be changed after death is disputes among beneficiaries. If there are disagreements regarding how assets should be distributed or who should receive what, changing the will can help resolve these conflicts and ensure that all parties are satisfied with the outcome.
In some cases, one or more beneficiaries may feel that they have been unfairly treated by the original will and wish to contest it. Changing the will after death can prevent such disputes from arising and ensure that everyone receives their fair share of the estate.
Mistakes or omissions in the original will
Even with careful planning and consideration, mistakes or omissions can occur when creating a will. For example, important details may have been left out or incorrect information included inadvertently. In such cases, changing the will after death may be necessary to correct these errors and ensure that everything is done according to the deceased’s wishes.
New beneficiaries come forward
Finally, there may be situations where new beneficiaries come forward after the death of the testator. This could happen if someone was not aware of their entitlements under an existing will or if new information comes to light regarding family connections.
Changing a will after death can help ensure that these individuals receive what they are entitled to and that the deceased’s wishes are properly carried out. It can also prevent disputes from arising among other beneficiaries who may feel that they have been unfairly treated.
Can a Will Be Changed After Death?
Once a person has passed away, their will becomes a legal document that outlines their wishes for the distribution of their assets.
The Will Contest
In Texas, the law does allow for a will to be changed after death. One way that a will can be modified after death is through a legal process known as a “will contest.” A will contest is a formal challenge to the validity of a will that is filed with the probate court.
To prove that an original last testamentary document is invalid means that there were issues with how it was created or executed. For example:
- Lack of capacity: If it can be shown that at the time when testator signed his/her last testamentary document he/she lacked mental capacity.
- Undue influence: If it can be shown that the testator was coerced or unduly influenced by someone else to make certain provisions in their last will.
- Fraud: If it can be shown that the testator was fraudulently induced into signing a document that they believed to be something other than a will.
To prove that an original last testamentary document is incomplete means that there were issues with how it was written. For example:
- Ambiguity: The language used in the will is vague, and its meaning cannot be ascertained.
- Mistake: There are errors in the wording of the will or mistakes made in drafting it.
If a will contest is successful, the court may invalidate some or all of the provisions of the will and order a new distribution of the assets.
Judicial Modification or Revocation
Another way that a will can be modified after death is by asking the court to modify or reform the will. Under Texas law, a will can be reformed or modified after the testator’s death through a legal process known as “judicial modification or reformation” under the Texas Estates Code.
This process allows for the court to order modifications to the terms of the will in certain circumstances, such as to prevent waste or impairment of the estate’s administration, to achieve the testator’s tax objectives or to qualify a distributee for government benefits, or to correct a scrivener’s error in the terms of the will.
To initiate this process, the personal representative of the estate must file a petition with the probate court. The court will then review the petition and, if it meets the requirements of the law, may order modifications to the terms of the will. The court will exercise its discretion to order modifications or reformations that conform as nearly as possible to the probable intent of the testator.
It’s important to note that there is a time limit for filing a petition for judicial modification or reformation of a will. A personal representative must file a petition within four years of the date the will was admitted to probate.
The Family Settlement Agreement
In addition to the other methods mentioned, a will can also be changed after a person’s death through a family settlement agreement (“FSA”) agreed to by all of the beneficiaries of the will.
An FSA is a written agreement between the beneficiaries of an estate that outlines how the assets will be distributed and settles any disputes that may arise. An FSA is binding and enforceable under Texas law if it meets certain requirements.
To be valid, an FSA must be in writing, signed by all of the interested parties, and clearly identify the property to be distributed. The agreement must also state that it is a final settlement of all claims and disputes among the beneficiaries of the estate. Additionally, an FSA must be filed with the probate court for approval.
It’s important to note that an FSA cannot change the terms of the will itself. Instead, it can only modify the distribution of the assets among the beneficiaries. The concept is that the beneficiaries are to receive the property and, once received, they can generally do whatever they want with the property. The FSA just speeds up the alternative distribution scheme.
Also, it should be noted that an FSA is only valid if all of the beneficiaries agree to it, and it cannot be used to force a beneficiary to accept less than what they are entitled to under the terms of the will. All of the beneficiaries have to agree and consent to the terms of the FSA.
In conclusion, while a will cannot be changed after a person’s death in Texas, there are some limited circumstances where a will can be modified or reformed through a legal process known as judicial modification or reformation. This process allows for the court to order modifications to the terms of the will in certain circumstances, and it’s important to work with an experienced probate attorney to determine if this process is appropriate for your situation.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with disputes between heirs. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
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