Scheduling Open
6671 Southwest Fwy, Ste 490-A
By Appointment Only

Modifying a Will After Death

A will dictates a decedent’s wishes for their assets and how they wish for them to be distributed to potential beneficiaries. It 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.

What about modifying a will after death? This may be possible in some cases.

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 in accordance with 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 for modifying a will after death.

Will Contests

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. The contents of a will may be contested for a variety of reasons by an interested party.

Challenging on Grounds of Invalidity

A will can be challenged if an interested party believes it to be invalid. The burden of proof lies with the party challenging the validity of the will. Common challenges to the validity of the will include:

  • Lack of capacity: The testator lacked the mental capacity to be aware of what they were doing and was not of sound mind at the time of creation of the will.
  • Undue influence: The testator was unjustly influenced or coerced by another person to seek unjust benefit in their will to the detriment of other beneficiaries.
  • Fraud: The testator was fraudulently induced into signing a document that they believed to be something other than a will.
  • Forgery: The testator’s signature is believed to be forged by someone else. In the case of holographic wills, the contents of the will were written and signed by someone else posing as the testator. In these cases, a handwriting expert would need to analyze handwriting and signature samples of the decedent.

Challenging on Grounds of Incompleteness

A will can be challenged on the belief that it was not complete, and that there were issues with how it was written. Common challenges on grounds of incompleteness include:

  • Ambiguity: The language used in the will is vague, and its meaning cannot be ascertained.
  • Mistakes: 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. A new distribution of assets will be ordered, and in the case that all provisions of the will are invalidated, Texas intestacy laws will take place.

Judicial Modification or Revocation

Under the Texas Estates Code, modifying a will after death can also occur 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, such as to prevent waste or impairment of the estate’s administration, to achieve the testator’s tax objectives, 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”) that is 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.

The Takeaway

While a will cannot be completely changed after a person’s death in Texas, there are some limited circumstances where modifying a will after death can occur through different avenues, such as will contests, judicial modification, or family settlement agreements. However, it is important to note that there may be cases where a will is entirely revoked, and the state’s intestacy laws will take effect.

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.

Immediate DownloadFREE Access to Our Texas Probate Guide

Don't miss out, get a copy today!

Related Posts