Problems filing in the wrong court

Problems filing in the wrong court

What happens if you miss-file your claims

When a case or claim is filed in the wrong court, you may lose your claim without being heard. If your case is dismissed after the statute of limitations has run, you are out of luck no matter how good your claim was.

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

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Filing in the wrong court

In a 2020 case, a man died and his family filed his probate case in the probate court. His wife ( a divorce was pending but was not final so she was still his wife) filed an opposition and also filed a tort suit against the other family members in the probate court asserting claims of business disparagement and intentional infliction of emotional distress. (“the tort case”). The other family members filed a motion to dismiss under the Texas Anti-SLAPP law. The probate judge granted the motion to dismiss the tort suit and ordered the wife to pay attorney’s fees to the other family members. The wife appealed. 4-19-00500-CV.

No jurisdiction

In the appeal, the appeals court ruled that the probate court did not have jurisdiction over the tort suit. Because this decision came more than two years after the claims accrued, it was too late for the wife to refile them in a court that did have jurisdiction. 

The moral of this case?

If you file in the wrong court you may never get your case decided on the merits.

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Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

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Learn How To Obtain A Copy Of A Will In Texas.

In Texas, if a person dies with a valid will the will determines how his estate is disposed of to his beneficiaries. Often, the heirs don’t have a copy of the will and so can’t decide if the will is valid or needs to be contested. This may happen because the person who has the will is not on good terms with the heirs. It may also happen when the person who has the will is attempting to defraud the estate of the property and doesn’t want the rightful beneficiaries to know that they have an interest in the estate. The heirs might want to contest the will after they see it but they can’t make that decision without a copy. Since the statute of limitations is involved in challenging wills, the heirs need to know what the will says.

When a will is filed for probate, it is a public document and anyone can get a copy of it. The probate is filed with the county clerk of the county in which the decedent resided when he died. Contact the county clerk and ask for a copy. The clerk will make a copy of the will for anyone who wants it (with a small copying charge, of course.)

If a person has a will and doesn’t want to give a copy of it to the heirs of the decedent, the heirs should immediately become suspicious since it becomes a public document once it is filed and it has to be filed to become effective. There is no reason to hide it except to deny the heirs their rightful inheritance or to keep them from deciding to contest the will. In the event the will is not filed for probate, the Texas Estates Code has a procedure where the attorney for the heirs can demand that a will be filed with the clerk if no probate has been filed. If the will is not filed after the demand, the attorney can file a motion with the court to hold in contempt the person who refuses to file the will. There is a provision for a fine and jail time for refusing to file the will. In addition, the Texas Penal Code makes it a jail felony to conceal, alter or destroy a will.

While it can be difficult to obtain a copy of a will after someone dies, there are remedies available.

What Is Probate In Texas

The process for probating a will in Texas is for the proponent of the will to contact a lawyer to file it for probate with the county clerk. The clerk then post notice of the filing on the courthouse door (usually just a wall in the hallway) and serves process on those entitled to process. If you are not entitled to receive personal service, your notice is the notice that is posted on the courthouse wall. Once filed, the will is a public document and anyone can get a copy. There is no reading of the will.

Usually, after the notice has been posted on the courthouse door for a short period of time, the county judge has a hearing. Some small counties have the hearings very quickly while some larger counties take longer to set the hearing. At the hearing, the judge reviews the application in open court, hears testimony from the proponent of the will that the will is the last will of the decedent and, if no contest has been filed, admits the will to probate by signing an order. When the judge signs the order admitting the will to probate, the statute of limitations start to run on those who oppose the will to challenge the will by filing a will contest. If a person is contesting the will, he must contest it within two years of the date the judge admits the will to probate. It is better practice to file a will contest before the hearing where the judge admits the will to probate. You can also file a will contest before someone else files the will for probate.

With certain exceptions, a will has to be filed for probate within four years of the death of the testator. A will contest must be filed within two years of the date the will was admitted to probate. That is, two years from the date that the judge signed the order admitting the will to probate.

Do you need a lawyer to probate a will in Texas?

The answer to so many issues dealing with inheritance and probate is “maybe.”

If you want to probate the will as a muniment of title, then you can do that yourself. On the other hand, if the will names you as the independent executor, and you want the court to appoint you as independent executor, then you must have a lawyer to probate that will. An independent executor represent the estate and a non-attorney cannot represent others in court. You have to be an attorney to represent others in court. “An executor of an estate serves in a representative capacity of the estate, thereby requiring an attorney to represent the interests of the third-party (the estate) at the outset.” 13-17-00555-CV.

Contesting a will in Texas

Zoom type workshops?

In the age of Covid-19. we have been thinking of having monthly or bi-monthly, free, Zoom type workshops where participants discuss with us issues that are of interest to them. There would be no agenda, we would discuss areas that the participants wanted to discuss. Participants could attend by computer, tablet or smartphone.

This would be a public Zoom type meeting so nothing personal or confidential should be discussed. Just general questions. Personal or confidential questions should be asked by using the Contact Us tab above.

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