In some states the beneficiaries of a will may agree among themselves as to the distribution of the property left to them and agree not to probate the will. This is informal probate—also known as the family settlement doctrine—and is supported by the general principle that the property belongs to the beneficiaries under the will and since they may divide the property as they wish (by transfers made immediately after the distribution), there is no reason why they may not divide it by agreement before they receive it in the regular course of judicial administration of the estate.
For this reason—and because such agreements tend to put an end to family controversies by way of compromise—family settlement agreements are favored in law. And in some states a family settlement in which all the heirs and beneficiaries agree that a purported will shall not be probated is valid and enforceable.
Thus, a will can be contested on the grounds that the person offering the will for probate (proponent of the will) agreed in a family settlement agreement not to probate the will.
In Texas, the family settlement doctrine is recognized and allows beneficiaries of a will to enter into an agreement regarding the distribution of the estate's assets, potentially avoiding the formal probate process. This doctrine is based on the principle that beneficiaries have the right to the property and can decide among themselves how to divide it. Such family settlement agreements are generally favored because they can resolve disputes and promote harmony within the family. If all heirs and beneficiaries concur, they can agree not to probate a will, and this agreement can be valid and enforceable. Additionally, in Texas, a will can be contested if there is evidence that the proponent of the will had previously entered into a family settlement agreement with the understanding that the will would not be probated. It is important to note that while family settlements can simplify the distribution of an estate, they must be carefully drafted to ensure they comply with Texas law and that all parties' rights and interests are adequately protected.
