Estate & probate
litigation in Houston

Almost every case here starts the same way. Someone died, or someone lost capacity, and a document or a person is not doing what the family expected. What follows is rarely about money alone.

Texas presumes a properly executed, self-proved will is valid. A contestant has to overcome that, and the recognized grounds are narrow.

The grounds

• Lack of testamentary capacity. At the moment of signing, the testator must have understood they were making a will, known the general nature and extent of their property, and known the natural objects of their bounty. Capacity is judged at execution — a dementia diagnosis afterward is evidence, not proof.
• Undue influence. Not persuasion or affection. It requires influence that overpowered the testator’s free will and produced a document reflecting someone else’s intent. Classic markers: an isolated elderly person, a new caregiver or late-arriving relative, a sudden change in favor of that person, and that person arranging the lawyer and the signing.
• Fraud — the testator was deceived about a material fact or about what they were signing.
• Forgery.
• Improper execution — the will does not satisfy Estates Code § 251.051.
• Revocation by a later will or by physical destruction with intent.

The deadline

Generally two years from the date the will was admitted to probate, with limited extensions including for a person under a legal disability and, in cases of forgery or other fraud, for a period running from discovery. These rules are strict and fact-dependent. Do not wait to see whether administration improves.

No-contest clauses

Texas enforces in terrorem clauses — but a forfeiture generally will not be enforced against a contestant who brought the action in good faith and with just cause. That exception is real, and it is also not a license. Whether a particular challenge clears it is one of the first things we evaluate, because the downside of getting it wrong is losing a gift you would otherwise have received.

Trust litigation is governed by the Texas Trust Code (Property Code Title 9, Subtitle B) and tends to look different from a will contest: the document is usually not in question, the trustee’s conduct is.

• Failure to distribute where the trust terms require it, or abuse of a discretionary standard.
• Failure to account. Texas beneficiaries have rights to information about the trust; a trustee who stonewalls is generating a lawsuit.
• Improper investment or failure to manage trust property prudently.
• Favoring one beneficiary over another where the trustee owes duties to both, including between income and remainder beneficiaries.
• Self-dealing — a trustee renting trust property to themselves, lending trust funds, or buying trust assets.
• Validity challenges — capacity, undue influence, or revocation, on the same grounds as a will.
• Construction disputes — the trust is valid and nobody can agree what a provision means. Often resolved by a declaratory action rather than a fight.

Start with a demand for an accounting. A surprising share of trust disputes are not misconduct — they are an amateur trustee who did not know they owed anyone an explanation. A formal request often produces the records and ends the matter, and where it does not, the refusal itself becomes evidence.

Executors, administrators, trustees, and agents under a power of attorney all hold other people’s property. Texas holds them to real standards.

Remedies can include removal, a judgment for the loss, disgorgement of profits, forfeiture of the fiduciary’s compensation, imposition of a constructive trust on property that was improperly taken, and in some circumstances attorney’s fees.

Agents under a power of attorney are fiduciaries too. A large share of what we see is not an executor after death but a child who used a parent’s POA to move money to themselves during the parent’s decline. Those claims belong to the estate and are frequently worth pursuing.

When someone dies without a will, the first question is who the heirs are — and sometimes the family does not agree.

• A previously unknown child. A child from a prior relationship is an heir under Texas law regardless of whether the rest of the family knew about them or wants them included.
• Disputed informal marriage. Texas recognizes informal (common law) marriage where the couple agreed to be married, lived together in Texas as spouses, and represented to others that they were married. Proving or disproving it after death, against heirs with the opposite interest, is genuinely contested litigation.
• Paternity questions, which may require evidence beyond testimony.
• Adoption and step-relationships — an adopted child inherits; a stepchild who was never adopted does not.
• Competing family histories in a determination of heirship, where the court has appointed an attorney ad litem for unknown heirs.

These cases turn on records more than argument — marriage licenses, divorce decrees, birth records, and the testimony of people who knew the family. See dying without a will for how Texas divides an estate once heirship is settled.

Courts do not remove a fiduciary because beneficiaries are frustrated. You need statutory grounds and evidence.

Personal representatives

Grounds recognized under the Estates Code include failing to file an inventory, appraisement and list of claims or to make required returns; misapplying, embezzling, or removing estate property; becoming incapacitated or otherwise incapable of performing the duties; gross misconduct or gross mismanagement in performance of duties; and, for an independent executor, failing to qualify or to account when properly required to.

Trustees

The Texas Trust Code permits removal for cause, including a material violation of the trust that results in material financial loss, insolvency or incapacity of the trustee, failure to make an accounting required by law, and a conflict of interest or other cause that substantially impairs administration of the trust.

Guardianship disputes are heard in the same statutory probate courts as estate matters, and they carry the same intensity with higher stakes — the subject of the proceeding is alive and their autonomy is what is being decided.

• Contested applications — whether a guardianship is necessary at all.
• Competing applicants — which family member should serve, and Texas’s statutory preferences.
• Less restrictive alternatives. Texas requires the court to consider alternatives such as a durable power of attorney, a medical power of attorney, or supported decision-making before imposing a guardianship. Many proposed guardianships are unnecessary because the person already signed a power of attorney.
• Removal of a guardian who is not filing reports, is mismanaging the estate, or is isolating the ward.
• Disputes over visitation and access to a ward by family members.

The best defense to a guardianship is planning. A signed durable power of attorney, medical power of attorney, and declaration of guardian in advance of need can prevent the proceeding entirely — and where one is already filed, they are powerful evidence of what the person wanted.

Estate disputes are unusual in litigation: the parties are related, they will still be related afterward, and the money they are fighting over is being spent by the fight.

Jireh Davis is a trained mediator as well as a probate and estate litigator. In practice that means the first conversation about your case is not “what do we file” but “what does resolving this actually look like, and is there a version everyone could accept.” Texas courts frequently order mediation in these cases anyway; going in prepared, early, and with a realistic view of the evidence is what makes it work.

And sometimes the answer is no. A forged signature, a fiduciary who will not produce a single record, a party who will not appear — those cases are litigated, and they should be. Knowing which kind you have is the point of the first meeting.