A will contest is full civil litigation. In Harris County it’s tried in one of five statutory probate courts, under local rules that lawyers from outside the county often don’t know. Here’s how these cases move through the courts here.
Texas Estates Code Section 256.204 gives an interested person until the second anniversary of the date a will was admitted to probate to file a contest. The clock starts on the date of admission, and that date can come years after the death.
The statute has two exceptions. A suit to cancel a will for forgery or other fraud can be filed within two years after the forgery or fraud was discovered. An incapacitated person, which under Section 22.016 includes a minor, has until two years after the disability is removed. For a minor, that generally means two years after turning 18.
The fraud exception does less work than people expect. A probated will and the order admitting it are public court records, and the Texas Supreme Court held in Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981), that persons interested in an estate are charged with notice of the contents of the probate records. In that case, limitations on the fraud claim began to run when the will was admitted to probate. If you think you have a contest, assume you have two years from admission and plan around that date.
Harris County has five statutory probate courts, established by Texas Government Code Section 25.1031(c). That’s more than any other Texas county. Most counties don’t have a statutory probate court at all, and probate there is heard in the constitutional county court or a county court at law.
Probate Courts 1 through 4 sit at the Harris County Civil Courthouse, 201 Caroline Street. Probate Court No. 5 is at 1115 Congress Street, 5th Floor. Confirm your court assignment before you go.
A case is assigned to a court when the original application is filed, and everything relating to that estate stays in that court under the original docket number. You don’t get to pick your judge. A contest filed later goes to whichever court already has the estate.
Local Rule 2 of the Harris County probate courts sets up a sub-file numbering system that trips up attorneys who don’t practice here often.
Matters principally concerned with administering the estate are core matters, and they’re filed under the main cause number. A will contest is a core matter. So are removal of a personal representative, heirship determinations, claims, and contests over sales, fees or accountings during the administration.
Contested matters that bear no direct relationship to the administration and could become an independently tried lawsuit are ancillary. They get the original docket number plus a suffix starting with 4, so an estate numbered 123,456 would have an ancillary matter numbered 123,456-401. Foreclosures, title suits, personal injury claims, and trust actions other than construction questions are filed this way.
The clerk keeps a separate file for each sub-file number, and an ancillary matter can carry its own docket control order and discovery schedule. Filing in the wrong place costs you time. The court also has discretion to sever a core matter into an ancillary proceeding.
A Harris County statutory probate court hears much more than applications to admit wills. Under the courts’ published jurisdiction, it hears lawsuits by or against executors, administrators, guardians, and trustees, and it has concurrent jurisdiction with the district courts in those suits. Estates Code Section 32.007 lists several of these concurrent-jurisdiction actions, including actions by or against a trustee and actions involving an inter vivos, testamentary, or charitable trust.
That’s a practical advantage in a contested estate. A will contest, a breach of fiduciary duty claim against the executor, and a dispute over trust property can often be resolved in one court instead of being split between the probate court and a district court.
Mental health commitment and forced medication matters are heard only in Probate Courts 3 and 4.
Under Local Rule 11.1, the Harris County probate courts will try only cases that have gone through a previously ordered ADR procedure, unless there’s good cause shown. Plan for mediation from the start. Telling the court the other side is unreasonable won’t get you out of it.
Most contested estates in Harris County resolve at or after mediation. The ones that go on to trial are usually cases where a party treated mediation as a box to check.
Under Local Rule 11.2, a trial is set by requesting a docket setting or scheduling conference from the court where the matter is pending and serving notice on opposing counsel. At the conference the court hears announcements and assigns a trial date. It may also enter a docket control order.
Contested cases are set for a date certain, but more than one case can be set for the same day. If a case isn’t assigned to trial within ten days of its setting, the court will reset it, either through another scheduling conference or a new docket control order.
Local Rule 11.6 blocks out two stretches of the year. Unless all parties consent, the courts won’t start trials or hear motions orally during the week of the State Bar’s Advanced Estate Planning and Probate course, or during any December week whose Monday falls between the 22nd and the 31st. If your setting is close to either, expect it to land on the far side.
Local Rule 7.1 adds a dismissal docket. Contested cases that aren’t set for trial and have been on file for more than three years are subject to dismissal for want of prosecution. If your case has gone quiet, get it set.
Texas Estates Code Section 55.002 entitles a party in a contested probate proceeding in a probate court to a jury trial as in other civil actions. Testamentary capacity and undue influence are fact questions, and juries decide them.
You have to ask for one. Texas Rule of Civil Procedure 216 requires a written jury demand filed a reasonable time before the case is set on the non-jury docket, and at least thirty days before that date, with the jury fee paid in the same window. Miss it and the court can refuse you a jury. Don’t count on an appellate court to fix a late demand.
A contested estate in Harris County commonly runs well over a year. An uncontested probate often moves through the court in a few months, but a contest adds pleadings, discovery and depositions, court-ordered mediation, and a trial docket shared with four other courts. Cases with multiple parties, business valuations, or mineral interests take longer.
Be skeptical of anyone who tells you a will contest in this county will be quick.
Most contests rest on one of a handful of theories.
Being left out of a will, or getting less than a sibling, isn’t by itself a ground to contest it. A testator is allowed to be unfair. The court looks at whether the will reflects what the testator actually wanted and whether the testator was competent to decide.
We handle contested probate matters, dependent administrations, and large or complex estates across Texas, including in all five Harris County probate courts.
If your matter is a routine uncontested probate, we’ll tell you on the first call and point you somewhere that fits.
The first conversation is a short call, and it’s free. Bring what you have: the will if there is one, the date it was admitted to probate, and a short description of who’s on the other side.
Schedule a consultation or call (281) 219-9090.