San Antonio Express-News
August 5, 2003

Will Contest Statute of Limitations

copyright 2003, Paul Premack

Dear Mr. Premack: Is there a concrete Statute of Limitations for contesting a Will? There is a Will, it was probated, and an executor was named. How long do the heirs have to make a decision about contesting the Will? - MRC

Section 93 of the Texas Probate Code says: "After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward…"

So the straightforward answer to your question is "two years." But there are two exceptions to the two-year limitation law.

First, the two years can be extended if the contest is based upon forgery or fraud. In that case, those who desire to challenge the Will can file the contest up to two years after discovering the forgery or fraud. For example, a Will was admitted to probate in 1999. In August 2003 one of the heirs admits to forging the signature. An interested person would not be barred from challenging the forgery until August 2005 (that is, two years after discovering the forgery).

Second, the two years can be extended for an incapacitated person who recovers capacity. An easy example: a Will was admitted to probate in 1999. Little Tommy, age 14, is one of the heirs. As a minor, he is considered to be incapacitated. When he turns 18, he has two years in which to bring any contest to the Will before the statute of limitations runs for him.

Dear Mr. Premack: My mother died in 1997 and her Will stipulates that she is giving her interest in the 44 acres to me and the house they lived in on the 44 acres to my dad. Does this mean I have the right to claim 50% of this community property and have it deeded to me now? – RM

Look at the legal positions each of your parents was in before your mother died. They each owned a half interest in the 44 acres and in the house. They each had homestead rights in the house with the right to occupy the house.

When your mother died, she was fully within her legal rights to give you her half interest in the 44 acres. She could have legally given you her half interest in the house, even though she chose to leave that entirely to your father. His rights have been enhanced since her death: he owns 100% of the house and 50% of the acreage. You cannot interfere with his occupancy of the homestead even though you own a 50% interest in the acreage.

Thus it is vital to decide how much of the acreage is homestead, and how much is not homestead. If the land is a rural homestead (that is, it is not served by municipal police, firefighters or utilities and is outside a city’s jurisdiction) then all 44 acres are homestead property. You are barred from claiming any of it until his homestead rights expire. On the other hand, if it is an urban homestead then only 10 acres and the house are homestead. You can legally insist that your half of the 34 non-homestead acres be separated, so you can sell or do with them as you please, but you should consider the emotional impact such an action might have on your father.