Probate and Incompetence: What Texas Residents Need to Know

Ideally, any individual drafting a will would be able to make decisions for him or herself. In reality, however, at times, there are competence issues, meaning that when a person is mentally incompetent or incapacitated, others might challenge that person’s will or estate plans down the line. In today’s blog, we cover the most important things you need to know about probate and incompetence, walking you through some of the steps that a Texas probate court might require in order to prove a decedent’s incompetence.

What is Incompetence?

In Texas, a person is deemed “incompetent” in the legal sense if he or she does not have sufficient mental ability to understand that he or she is making a will. If that person does not understand the will’s possible effects and/or know which people will inherit through the will, he or she might be deemed incompetent.

Courts rely on witnesses to speak about a person’s capacity, and courts generally want to hear about the person’s capacity on the day the will was written. If, for example, a decedent was mentally stable on the day of the will’s execution but mentally unstable from the next day onward, the court will only consider the day when he or she actually made pertinent decisions about the will.

What Happens if Someone is Deemed Incompetent?

If an individual wants to challenge a will based on the fact that the decedent was incompetent when drafting the will, that person must prove to the court that the decedent was not of sound mind when making his or her estate plans. Oftentimes, those proved to be incompetent have some kind of medical diagnosis, such as dementia.

If the court finds that the decedent was incompetent and that the will is, therefore, invalid, the probate process might have to start from the very beginning – either with a previous version of a will or no will at all. This finding of incompetence can understandably upend the proceedings, elongating the probate process.

Proving incompetence can be tough, but reliable attorneys can help you through the proceedings in order to deem a decedent incompetent. This is a tool to only utilize if the decedent was truly unable to understand his or her own estate planning, as the court’s priority is respecting a decedent’s wishes as long as he or she was of sound mind when articulating those wishes.

Are You Looking for an Estate Planning Attorney in Texas?

At McCulloch & Miller, PLLC, our services ensure that our clients have estate planning attorneys they can trust and confidence that their loved ones are well-protected moving forward. With over three decades of experience in Houston, we are well-positioned to offer advice and help you figure out the best path for you and your family. For a consultation with a member of our team, give us a call today at 713-903-7879. You can also fill out our online form to have an attorney reach back out to you as soon as possible about your estate plan.


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