Connie Bautista did not know her father had a new will.
She found out the way most families find out: accidentally. Her brother Marcus had called in February 2024, not to tell her their father Ernesto had passed six weeks earlier — she already knew that; she had been at the funeral in Allen — but to tell her that the house on Watters Road, the one their father had lived in for twenty-seven years, was going to be sold. Marcus was selling it. He was the sole beneficiary under Ernesto's most recent will, executed in October 2022, eighteen months before he died. The will Connie had seen — the one on the kitchen table at Christmas 2019, leaving the Allen home equally to her and Marcus — was not the will that went to probate.
Connie hired an estate attorney in March 2024. The attorney pulled the Collin County probate records and found the date that changed everything: Ernesto's 2022 will had been admitted to probate on January 3rd. The day Connie first called the attorney, the probate order was sixty-two days old.
Under Texas Estates Code § 256.204, she had two years from that January 3rd date to file a will contest. She still had more than twenty-two months. But when her attorney told her how close she had come to losing that window entirely — through no fault of her own, just from not knowing the probate clock had started — the number that stayed with her was not twenty-two months. It was sixty-two days.
Because there are families who call on day 732.
The Deadline That Surprises Everyone
Most people who contact a Texas probate litigation attorney assume the clock on challenging a will runs from the date of death. It does not. Under § 256.204(a) of the Texas Estates Code, the two-year period begins on the date the court admits the will to probate — the day the judge signs the order. Death triggers nothing on its own.
This distinction is not academic. Consider what typically happens in a Texas estate: a parent dies, a will is found, a sibling files for probate without telling the others, the court holds a brief hearing on a weekday morning, and the judge signs an order. That can happen in three to six weeks. The estranged sibling in another city, the adult child who was kept out of the loop, the family member who didn't even know their parent had a new will — none of them received notice of that probate hearing. None of them know the clock has started.
Texas probate courts do not require individual notice to all potential heirs before admitting a will to probate. Publication in a local newspaper satisfies the statutory notice requirement for most estates. If you were not watching the legal notices in the Collin County newspaper in December 2023, you would not have known that Ernesto Bautista's will was being probated.
That gap — between when the clock starts and when the challenger learns the clock has started — is where most will contest deadline problems originate. And once two years have passed from the date of that probate order, the claim is gone. Texas courts do not bend this rule for honest confusion, delayed discovery of new wills, family communication failures, or grief.
What the Statute Actually Says
Texas Estates Code § 256.204 reads:
"After a will is admitted to probate, an interested person may commence a suit to contest the validity thereof not later than the second anniversary of the date the will was admitted to probate, except that an interested person may commence a suit to cancel a will for forgery or other fraud not later than the second anniversary of the date the forgery or fraud was discovered."
Three things in that language deserve attention.
First: "interested person." Standing is not unlimited. Under § 22.018, an interested person is an heir, devisee, spouse, creditor, or any other person who has a property right in or claim against the estate being administered. Connie Bautista was an interested person because she would have inherited under Texas intestacy law if the 2022 will were invalid. A distant cousin who would receive nothing even if the will were thrown out likely lacks standing. Before filing a contest, the threshold question is whether the challenger has a legal stake in the outcome.
Second: "not later than the second anniversary." The two-year window is a statute of repose, not a general statute of limitations. This matters because Texas courts have consistently held that the discovery rule — which normally delays the start of a limitations period until the plaintiff discovers the injury — does not apply to will contests. The only discovery-rule carve-out in § 256.204 is the one explicitly written into the statute: forgery and fraud. Everything else runs from the date of admission, period.
Third: the forgery and fraud exception. If a challenger can demonstrate that the will itself was forged, or that the execution was obtained through fraud — not just undue influence, but actual fraud — the two-year period runs from the date the forgery or fraud was discovered, not the date of probate. This exception is narrow and fact-specific. Courts require concrete evidence of forgery or fraud, not simply suspicion that something is wrong. Undue influence, lack of testamentary capacity, improper execution — those are valid grounds for a will contest, but they must be filed within two years of the probate date, regardless of when the challenger learned of the problem.
The Tolling Rule for Persons Under a Legal Disability
Section 256.204 contains one more provision that most online summaries omit: tolling for persons with legal disabilities.
Under § 256.204(b), if a person who would otherwise be entitled to contest a will is under a legal disability — meaning they are a minor, or they have been adjudicated as incapacitated — the two-year period does not begin to run until the disability is removed. A minor who turns eighteen after a will is probated gets two years from their eighteenth birthday. An adult who was incapacitated at the time of probate and whose guardianship is later terminated gets two years from that termination date.
This provision matters most for estates involving minor grandchildren, disabled adult beneficiaries, or situations where a contested testator had family members with developmental disabilities who might have different inheritance rights under intestacy. It does not help the person who simply didn't know about the probate — legal disability is a specific legal status, not a synonym for ignorance.
What Happens After a Contest Is Filed
Filing a will contest in Texas probate court within the two-year window is not a guarantee of success. It is a guarantee that the court will hear the claim. Will contests in Texas are adversarial proceedings tried to a jury or a judge, depending on the parties' elections. The challenger bears the burden of proving the grounds for invalidity by a preponderance of the evidence.
The most common grounds for a Texas will contest are:
- Lack of testamentary capacity. The testator must have been of sound mind at the time of execution — meaning they understood the nature of a will, the extent of their property, their natural heirs, and how the document disposed of that property to those heirs. A diagnosis of dementia is evidence but not proof of incapacity; capacity is measured at the moment of signing, and a person with early-stage dementia may have had a lucid interval.
- Undue influence. Someone in a position of trust — a caregiver, a child who controlled access to the testator, a new romantic partner — exercised influence over the testator so overpowering that the resulting will reflected that person's wishes rather than the testator's own.
- Improper execution. The will was not executed in compliance with Texas law: it was not signed by the testator, was not witnessed by two credible witnesses over age fourteen who each signed in the testator's presence, or it was not signed voluntarily. (Holographic wills have a different execution standard but are still subject to contest.)
- Fraud or forgery. The testator's signature was forged, or the testator was deceived about the nature of the document they were signing.
- Revocation. A later valid will revoked the probated will, or the testator physically destroyed or formally revoked the will before death.
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Connie Bautista's case turned on undue influence. Ernesto had been in assisted living in Plano since early 2022, suffering from advancing Parkinson's disease and mild cognitive impairment. Marcus had power of attorney and had become the primary point of contact between Ernesto and the outside world. The 2022 will was drafted by an attorney Connie had never heard of, executed in a conference room at the assisted living facility, with Marcus present during the signing. The 2019 will — the one Connie had seen at Christmas — left the Allen home equally to her and Marcus. The 2022 will left it entirely to Marcus.
None of that would have mattered if she had called on day 733.
How to Find Out When a Will Was Probated
If you suspect a parent, grandparent, or other family member's estate was probated without your knowledge, the answer is in the public county records. In Texas, probate filings are public documents filed with the county clerk and maintained in the county's probate court records. For North Texas estates, that means Collin County Clerk's office in McKinney, Dallas County Probate Courts in Dallas, Denton County Clerk in Denton, and Tarrant County Probate Courts in Fort Worth.
Searching by the decedent's name in the county's online records system will reveal whether a probate proceeding was filed, when it was filed, and the date the will was admitted to probate. Many Texas counties have online case lookup systems. An attorney can pull these records quickly and definitively.
If you are not sure which county to search — the correct county is where the decedent was domiciled at death, which is often but not always where they owned property — an attorney can run concurrent searches across the relevant counties in a matter of hours.
The lesson: if you have any reason to believe a will may have been changed or probated without your knowledge, act immediately. Do not wait for a family member to volunteer the information. Do not assume the process has not started. Pull the records.
What Happens If the Two Years Have Passed
If the two-year window has closed and you have no fraud or forgery claim — and no disability tolling applies — the probated will is final. Texas courts will dismiss a late-filed contest. The legal doctrine of res judicata — the principle that a final judgment bars relitigation of the same claims — applies to probated wills once the contest period expires. The property has transferred, and there is no mechanism to reopen the question.
This does not mean there are no remaining remedies if other facts support them. Depending on the circumstances, there may be claims for breach of fiduciary duty against an executor who concealed assets, conversion claims against beneficiaries who wrongfully received property, or claims against an attorney who facilitated an improper transfer. But those are distinct legal actions, not will contests, and they carry their own limitations periods and burdens.
The will contest itself — the action to invalidate the probated document — is gone.
Back to Connie
Connie Bautista filed her will contest on June 14, 2024. The grounds: undue influence, with supporting evidence gathered through the attorney's investigation — a prior draft of the 2022 will that had been circulated by email and that showed different distribution terms, a contemporaneous note from the assisted living facility's social worker expressing concern about Marcus's presence during Ernesto's medical discussions, and testimony from three of Ernesto's longtime friends that Ernesto had spoken about leaving the house equally to both children as recently as the summer before his death.
Her case was still pending as of this writing. Will contests take time — discovery, depositions, a trial setting in Collin County Probate Court. The outcome is uncertain.
But she is in court. Because she called on day sixty-two.
Speak with WG Law's Probate Litigation Team
At WG Law, Therese Gutierrez leads our probate litigation practice, handling contested wills, undue influence claims, breach of fiduciary duty, and executor removal matters across Collin County, Dallas County, and the greater DFW metroplex. If you have questions about a loved one's will, suspect changes were made under improper circumstances, or simply need to know whether a probate order has been entered and when, our team can give you a clear answer fast — before the clock runs out.
We offer a free probate case review for probate matters. To speak with our team, call 214-250-4407 or contact us online.
For related reading, see our articles on the grounds for contesting a will in Texas probate court, testamentary capacity versus undue influence in a Texas will contest, what Texas law says about no-contest clauses, and how executors defend against will contests. You can also explore our Texas probate litigation practice and the specific page on Texas will contests.
This article is general information and is not legal advice. Every estate is different. If you believe you have a claim to contest a will, consult a licensed Texas attorney promptly — time limits are strict and missing the deadline permanently bars your claim.