By Kenneth “Kenny” Sumner, Jr., Partner, Romano & Sumner, PLLC — focusing on probate, guardianship, and estate litigation in the Houston and Sugar Land area.
The General Rule, in One Line
Texas Estates Code § 256.204 gives an interested person (which includes an heir) two years from the date a will is admitted to probate to contest it. If you want the full breakdown of that deadline (when it starts, what happens if you just got a notice, who has the burden of proof), see the time limits for contesting a will. This post is about something narrower: the situations where that clock doesn’t behave the way you’d expect.
Why the Deadline Isn’t Always the Whole Story
Most people who come to us assuming they’re “too late” have done the math correctly. It has been more than two years since the will was admitted. What they haven’t done is ask why they didn’t know sooner. Sometimes that answer changes everything.
The law recognizes that a strict two-year cutoff is unfair in two specific situations: when someone was actively deceived about the will’s validity, and when the person entitled to contest it legally couldn’t act for themselves in the first place. Texas doesn’t hand out extensions for “I was busy” or “I didn’t think to check.” It hands them out for fraud, forgery, and incapacity, and only in the form the statute actually allows.
What Are the Two Main Exceptions to the Deadline?
1. Fraud or forgery — discovery can move the clock, but the public record usually limits it.
Under § 256.204(a), if you’re contesting the will on the ground that it was forged, or that fraud was involved in getting it admitted, you have two years from the date you discovered the forgery or fraud, rather than two years from the date the will was admitted. Texas courts read “discovered” the way they read the discovery rule generally: the clock starts when you actually knew, or when you should have known through reasonable diligence, whichever comes first. Mooney v. Harlin, 622 S.W.2d 83, 84 (Tex. 1981); see also Escontrias v. Apodaca, 629 S.W.2d 697 (Tex. 1982) (Texas Supreme Court applying the discovery rule to this statute’s predecessor).
Here’s the part that surprises people: because a probated will is a public court record, Texas courts have repeatedly held that you’re on constructive notice of what’s in that file. You can’t sit on a hunch and later claim you “just found out.” In Mooney v. Harlin, the Texas Supreme Court barred a fraud claim brought over a will more than four years after it was admitted, because the probate records — open to the claimant the whole time — would have revealed the problem far sooner. His two years ran from the date the will was admitted, not from the day he finally looked. 622 S.W.2d at 84–85. In practice, that means the real question isn’t just “when did I find out,” but “when could I have found out if I’d checked the file,” and the second question is the one that controls. So in most forged- or fraudulent-will cases the practical starting point ends up being the admission date, or close to it, because the will and the order admitting it are public from day one. The discovery rule meaningfully extends your time only when the fraud genuinely wasn’t discoverable from the public probate file, not simply because you didn’t happen to look.
This exception is narrow on purpose, and which side of the line you land on comes down to what kind of fraud you’re claiming. Texas courts sort it into two buckets. Extrinsic fraud is the kind that kept you out of the fight in the first place: a forged will, a document someone hid, or a probate you were never told about. Intrinsic problems are the ones that could have been decided back in the original probate if you’d been there — a claim that someone pressured the signer, or that they weren’t of sound mind. Only extrinsic fraud gets the discovery rule. Neill v. Yett, 746 S.W.2d 32, 35 (Tex. App.—Austin 1988, writ denied); In re Estate of Prieto, No. 04-22-00038-CV (Tex. App.—San Antonio Aug. 28, 2024); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003). So “I later found out Dad was pressured” or “I don’t think Mom had the capacity to sign this” still run from the date of admission, not from the day the truth clicked. That same line is where the discovery rule keeps its real force: because you’re only charged with what the public file would show, fraud hidden outside that file — concealed documents, or a probate no one ever told you about — is exactly where your two years can still run from discovery. Confusing “I found out something was wrong” with “the discovery rule saves me” is one of the most common mistakes we see, and it’s an easy one to make when you’re grieving and just learned the will wasn’t what you thought.
Forgery cases almost always involve handwriting experts — but hiring one isn’t the whole job. Part of our approach is thoroughly investigating any expert the other side puts forward: how they actually conduct their analysis and, critically, how many times they’ve testified. In one case, that research turned up a court transcript from a prior proceeding in which the opposing handwriting expert had lied on her resume. She was disqualified. Opposing counsel was not pleased, but our client was!
Incapacity — the clock doesn’t run until the disability ends.
Under § 256.204(b), an “incapacitated person” can contest a will up to two years after their disabilities are removed. In practice, that means the two-year clock doesn’t start ticking against them at all while the incapacity exists. Texas Estates Code § 22.016 defines “incapacitated” to include both:
- Minors: anyone under 18 who has never married and hasn’t had the disabilities of minority removed by court order under Texas Family Code Chapter 31. For most minor heirs, this exception ends automatically on their 18th birthday, at which point their own two years begins.
- Incapacitated adults: someone who, because of a physical or mental condition, is substantially unable to provide for their own food, shelter, medical care, or financial affairs.
In practice, this most often comes up for an heir who was already under a guardianship, or who was a minor, at the time the will was admitted. If a guardianship is later modified to restore the person’s capacity (a formal court process under Estates Code Chapter 1202), that’s typically what starts their two-year clock running.
Restoring legal capacity doesn’t just end the pause — it opens doors that were shut while the disability existed. We had a ward whose capacity was formally restored through the guardianship court process; with that came the ability to bring claims, including to recover assets squandered during the guardianship period, that couldn’t have been pursued before. The same logic applies to a will contest: the restoration date is the starting gun, not a formality.
In Texas, the two-year clock to contest a will usually starts the day the will is admitted to probate. It starts later only in narrow situations — when forgery or fraud genuinely couldn’t have been caught in the public probate file, or when the person contesting was a minor or legally incapacitated, in which case the clock doesn’t start until that disability ends.
| Fraud / forgery | Incapacity (minor or incapacitated adult) | |
|---|---|---|
| What triggers the extension | Discovery of the forgery or fraud | The disability itself, no separate trigger needed |
| When your two years starts | Date you knew, or reasonably should have known, of the fraud | Date the disability ends (turning 18, or capacity restored) |
| What you’re proving | That the fraud wasn’t reasonably discoverable from the public probate file any sooner | That you were a minor or legally incapacitated at the relevant time |
| Governing law | Tex. Est. Code § 256.204(a); Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981) | Tex. Est. Code § 256.204(b), § 22.016, § 22.022 |
One more path sits outside this table: for someone on active military duty, federal law can pause the deadline regardless of either exception — see the section on the SCRA below.
What these exceptions are not. There’s no general “I didn’t know about the will” rule outside of fraud and forgery. Grief, distance from the family, a bad relationship with the executor, or simply never being told: none of that pauses the clock on its own. If none of the above applies to your situation, the two-year deadline from admission is the deadline — with one narrow federal exception, active-duty military service, discussed below.
Think one of these might fit your situation? The line between fraud you genuinely couldn’t have found and a problem that was sitting in the public probate file is fact-specific, and it’s easy to misjudge from the outside. Before you write off the deadline, walk your facts through with a will contest attorney — you can reach Romano & Sumner at (281) 242-0995.
What Do Courts Require to Prove an Exception?
Claiming an exception and proving one are different things. A court isn’t going to take your word for when you found out about a forgery, or that you were incapacitated at a particular time. You need to show it.
For the fraud/forgery discovery rule, that means more than pointing to the day it dawned on you. Because the probate file is public, courts ask what a reasonably diligent person would have found by checking it, not just what you actually knew. Be ready to explain not only when you found out, but why the fraud wasn’t apparent from the public record any sooner. For the incapacity exception, it means the kind of proof a court already relies on in guardianship matters: birth records for a minor’s age, or a guardianship record and medical evidence for an adult’s incapacity and its end date.
Bring what you have. Don’t wait until you’re in front of a judge to start gathering it.
What to Do If You Think You’re Past the Deadline
- Get the actual admission date — not the date you found out, the date the court admitted the will. Every calculation starts here.
- Identify which exception, if either, actually fits your facts. Be honest with yourself: is this genuinely forgery or fraud, or is it a different kind of objection (capacity, undue influence) that doesn’t get the discovery-rule extension?
- Pin down your own discovery or disability timeline. When did you actually learn about the fraud, or when did the minority/incapacity end? Write down the date and how you know it, and, for a fraud claim, be ready to explain why the public probate file didn’t put you on notice sooner.
- Gather anything that documents that timeline before memories fade or records disappear.
- Talk to a will contest attorney before you assume the door is closed. Exceptions are narrow, but they’re real, and the fact pattern matters more than the calendar math alone.
When Federal Law Creates Its Own Opening: Active Military Service and the SCRA
The two exceptions above — fraud/forgery and incapacity — are what the Texas Estates Code gives you. There’s also a federal overlay that most people don’t think to look for, and that can apply regardless of either Texas exception.
Under the Servicemembers Civil Relief Act, 50 U.S.C. § 3936, commonly referred to as the SCRA, the period of a servicemember’s active military duty cannot be counted toward any civil statute of limitations, whether the servicemember is the plaintiff or the defendant. The tolling is automatic: once military service is established, no separate motion is required, and there’s no need to prove fraud or incapacity. The clock simply stops while the servicemember is on active duty and resumes when they leave. (The lone carve-out, naturally, is tax: SCRA § 3936 pauses the clock on just about everything except the deadlines that answer to the IRS. Go figure.)
We successfully used tolling under the SCRA in a Harris County will contest involving a will that had been admitted to probate almost a decade earlier, well outside the standard two-year deadline and beyond any other limitations period that normally comes up. One of our plaintiffs had been on active military duty for most of those years and had only recently transitioned out of service. We dismissed the other plaintiffs, whose deadlines had run, and proceeded with the servicemember as the sole plaintiff. The Harris County probate court agreed that the SCRA tolled the limitations period for his entire period of active duty. The case moved forward on the merits. (Like any case example in this article, that result turned on its own facts and isn’t a prediction of what would happen in your case.)
To be sure, this is an uncommon situation. Most people asking about will contest deadlines don’t have a military-service angle in play. But if a potential plaintiff was on active duty, especially for a prolonged stretch after the will was admitted to probate, the door may not be as closed as the calendar makes it look.
How Romano & Sumner Can Help
We handle contested wills and estate disputes in the Sugar Land, Fort Bend County, and Harris County probate courts, including cases where the two-year window has technically closed but a real exception may apply. We’ll look at your actual facts (the admission date, what you knew and when, whether a minority or incapacity issue is in play) and tell you honestly where you stand before you spend money finding out. For the full picture on contesting a will in Texas, including grounds and process, see our guide to contesting a will in Texas.
If you think you might be past the deadline, don’t assume that’s the end of it. Call Romano & Sumner at (281) 242-0995 for a free consultation and gather whatever documentation you have.
Frequently Asked Questions
Can I contest a will after the two-year deadline has passed? Only if a recognized exception applies: fraud or forgery (discovery rule), incapacity (minority or legal incapacity), or — in limited cases — federal law protecting active-duty military servicemembers. Outside of those, the two-year deadline from the will’s admission to probate is final.
What is the discovery rule for a forged will in Texas? Under Texas Estates Code § 256.204(a), if a will was forged or fraud was involved in probating it, your two years runs from when you knew, or reasonably should have known, of the forgery or fraud, rather than from admission. But because probate records are public, courts have held that a reasonable check of the file can start the clock even if you never actually looked — you’re charged with notice of what the probate file contains (Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981)). Talk to an attorney about documenting both when you found out and why you couldn’t have found out sooner.
Does being a minor pause the deadline to contest a will? Yes. Texas law treats minors as “incapacitated” for this purpose, so the two-year clock generally doesn’t start running against a minor heir until they turn 18 (or have the disabilities of minority removed earlier by court order).
Does undue influence or lack of capacity get the same discovery-rule extension as fraud? No. The discovery-rule extension in § 256.204(a) applies specifically to forgery and fraud. Other grounds, like undue influence or the testator’s lack of capacity, still run from the date the will was admitted to probate.
What’s the difference between “extrinsic” and “intrinsic” fraud in a will contest? It’s the line that decides whether the discovery rule can help you. Extrinsic fraud is fraud that kept you out of the process — a forged will, a hidden document, or a probate you were never told about. That’s what § 256.204(a)’s discovery rule was written for. Intrinsic problems are ones that could have been decided in the original probate if you’d been there, like undue influence or a claim the signer lacked capacity; those run from the date the will was admitted, not from when you discovered them (Neill v. Yett, 746 S.W.2d 32, 35 (Tex. App.—Austin 1988, writ denied); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003)).
What if an heir was incapacitated as an adult, not a minor, when the will was probated? The same tolling rule can apply. Texas Estates Code § 22.016 defines “incapacitated” to include an adult substantially unable to manage their own food, shelter, health, or finances. That person’s two years generally starts once their capacity is legally restored.
Can a military servicemember contest a will after the two-year deadline? Possibly, sometimes by years, as in our example. Under the Servicemembers Civil Relief Act (50 U.S.C. § 3936), active-duty military service cannot be counted toward any civil statute of limitations. The tolling is automatic once service is established; no separate motion is required, and there’s no need to prove fraud or incapacity. We’ve applied this in a Harris County will contest involving a will admitted to probate almost a decade earlier, proceeding with the servicemember as the sole plaintiff after dismissing co-plaintiffs whose deadlines had run. If a potential plaintiff was on active duty for a significant stretch after the will was probated, talk to a will contest attorney before assuming you’re out of time.
Is it worth calling a lawyer if I think I’m already past the deadline? Yes. Whether an exception applies depends on specific facts (what you knew, when, and why) that are easy to misjudge on your own. A short consultation can tell you whether you have a real path forward.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Every situation is different. For advice about your circumstances, speak with a qualified Texas attorney.
The most common grounds for contesting a will are:
- Lack of testamentary capacity
- Undue influence
- Lack of testamentary intent (the testator did not intend the document to operate as a will)
- Lack of proper formalities (signatures of witnesses, for example)
- Forgery
- Fraud
Can an estate executor or administrator recover attorney’s fees he has spent on behalf of the estate?
Yes. Under the Texas Estates Code, an executor or administrator can recover amounts that he has spent on behalf of the estate, as long as they are “reasonable and necessary.” These amounts include but are not limited to attorney’s fees. The money comes out of estate assets.
Undue influence occurs when the testator, at the time of the execution of his will, is subject to an influence (usually a person) that overpowers or subverts his mind to the extent that the will would not have been executed without that influence. Undue influence can be used to invalidate a will.
The testator of a will has “testamentary capacity” when he possesses the mental capacity to understand:
- that she is creating a will,
- the effect of making a will (the disposition of her property after she dies),
- the “nature and extent” of her property,
- the identity of her next of kin and other “natural objects of her bounty”.
Her mind must also be able to form reasonable judgments.
A holographic will is a will written completely in the handwriting of the testator (the person whose property is being distributed) and signed by the testator. Holographic wills are excused from the formalities associated with attested wills, such as the requirement that a will be signed by witnesses.
To contest a will, you must be an “interested person” – a person who stands to gain or lose from the way the deceased person’s estate is distributed. An interested person might be an heir, devisee, spouse or even a creditor. The “interest” does not even have to be financial – it can include, for example, an interest in the welfare of an incapacitated person whose guardianship is provided for in the will.