The events surrounding the aging and incapacity of an adult as well as the death of a loved one can often be emotional and difficult to handle. Unfortunately, these otherwise tough times in a family can many times be complicated by disagreements within a family of an incapacitated person or deceased individual. These disagreements many times result in probate or guardianship litigation cases.

In many instances, the techniques used in probate and guardianship litigation cases in Houston, Dallas, or almost anywhere in Texas, is vastly different than the techniques employed in other types of litigation. Because many counties have courts specifically dedicated to hearing probate and guardianship cases, those Courts conduct their cases differently from Courts that have more general jurisdiction over a wide variety of cases.

However, when discussing probate or guardianship litigation, certain topics are very often associated with such a discussion. Following is a brief explanation of the areas that we cover in this Information Center. Each is extremely relevant to the topic of Probate and Guardianship Litigation.

  1. Will Contests. In the vast majority of cases, a Decedent's Will is filed for probate and is administered without any conflict. However, in some cases, a dispute may arise over the person applying to be the executor, or the dispute may arise over the validity of the terms of the Will. In explaining Will Contests, we provide information related to the various avenues in which a Will is typically contested.
  2. Guardianship Litigation. Any time that a guardianship action is initiated, some level of controversy is likely to exist related to whether or not the incapacitated person is sufficiently unable to care for themselves that they need a guardian. Additionally, various family members of the incapacitated person may also disagree on who the most appropriate person may be to serve as the guardian. In either of these cases, severe litigation generally arises when the family does not agree as to the best course of action for the incapacitated person.
  3. Who and Where: Interested Persons and Venue. The Probate Code very clearly defines who may (and may not) participate in probate or guardianship litigation. Likewise, the Code clearly lays out in which County a probate or guardianship litigation case should be fought. This section of our website attempts to explain 1) who may participate in the proceedings, and 2) where the proceedings should be brought.
  4. Suits by Creditors. Anytime that a deceased person or an incapacitated person owes someone else money either at the date of death or date of incapacity, the creditor is forced to pursue payment of the money owed to him through the Probate Court in the estate of the Decedent or incapacitated person. The procedures for establishing a claim and receiving payment can be very complex, and they sometimes require the creditors to file suit against the Estate in order to ensure their payment. The unwary creditor stands to lose his claim and not be able to be repaid if he is not aware of the process involved. Likewise, the executor or guardian needs to be familiar with this process so that they understand the implications of creditors' claims.
  5. Surcharge Actions. A Surcharge Action is a suit against the bond company that has insured the administrator or guardian. The suit is brought when an administrator or a guardian has stolen or misused money out of the estate or guardianship, and once the Court has determined that wrong-doing has occurred, the bond company is liable to reimburse the estate for the lost money. These actions can be tricky, but they can provide the remedy for ensuring that the beneficiaries of an estate are not permanently deprived of the assets stolen by a dishonest administrator or guardian.

Probate and guardianship litigation cases are most appropriately handled by attorneys who focus their practices in these areas. Because of the special expertise involved in these cases, a client is best-served by working with an attorney who has strong competence in these areas.

The attorneys at Ford+Bergner LLP have been extensively involved in probate and guardianship litigation cases. Whether the case involves determining the validity of the terms of a Will, forcing proper accountings and distributions of an estate, questioning the necessity of placing someone under a guardianship, or determining the most appropriate person to serve as the guardian of an incapacitated person, our attorneys have worked frequently on these types of cases. Please contact us if you would like us to assist you in any of these areas.