by Robert Ray | May 9, 2023 | Contesting wills, How to probate a case, Procedure, Start
Texas Probate Notice Requirements
Who receives notice when a will is filed for probate in Texas?
When a will is filed for probate in Texas, the county clerk posts a notice on the courthouse wall. This notice provides constructive notice to the world that the will has been filed, and individuals should take necessary steps to protect their interests if any time limits or statutes of limitation apply.
However, a different rule applies when someone is a named beneficiary in the will. In that case, the executor or administrator must provide actual notice to the beneficiary that the will has been filed for probate. There must be something more than constructive notice.
In a recent Texas case, the contestant did not file his will contest within the two-year statute of limitations for contesting wills, and his contest was dismissed, leading to an appeal. 12-22-00256-CV. The contestant argued that he was a named beneficiary and should have received actual notice of the probate. However, the appeals court disagreed.
The will listed the contestant as the son of the testator but stated that the testator had “already give my son…a 1985 Chevrolet Corvette for his inheritance of my estate.” Despite the poor grammar, the court determined that the testator meant “already given my son” his inheritance, indicating that the son was not a beneficiary under the will since he did not receive anything under the will.
Things to Note
When someone passes, it is the responsibility of the heirs to understand what actions are required. In some cases, close relatives are unaware of an individual’s passing for several years following their death. If an individual is not listed as a named beneficiary in the will, they will not receive any personal notification, making it crucial for individuals to keep themselves informed.
by Robert Ray | Last updated Feb 18, 2023 | How, How to probate a case, Probate, Procedure
Statutory Probate Judges
The largest counties in Texas have Statutory Probate Courts. Those courts handle all probate matters in these large counties. The judges of those courts are well-versed in probate law and procedure. If you have a contested probate matter, it would be best to have a Statutory Probate Judge hear your case because of the judge’s experience and training. However, as stated earlier, the Statutory Probate Courts are only in the largest Texas counties.
If you file a contested probate case in a smaller Texas County, you may get a judge who hears criminal, civil, and probate cases. This doesn’t mean that those judges are incompetent in probate matters. It just means that probate matters make up a small part of their docket.
In medium-sized Texas counties, the county will have a County Court At Law. Of course, the judge of the County Court At Law has to be an attorney, but those courts hear all kinds of cases, from criminal to family matters to probate matters. In counties with a County Court At Law, you cannot request that Statutory Probate Judge be assigned to your case.
So, how can you get one to hear your case?
In the smaller Texas counties, the County Judge, who is more like the mayor of the county, hears uncontested probate matters. The County Judge does not need to be an attorney. If the probate case becomes contested, the case is transferred to the District Court, where the judge has to be an attorney. But these judges also hear all kinds of issues, not just probate cases.
In the smaller Texas counties, those without a County Court At Law, you have the ability to have a statutory probate judge hear your contested case. To get a Statutory Probate Judge to hear your case, you must file a motion requesting one at the beginning of the contest. If you wait and the county judge transfers the case to the district judge before your request, you will be heard in the district court. TEC §32.003, In Re Kohleffel, 13-22-00509-CV, (Tex. App. – Edinburg November 18, 2022.)
Learn more about Texas probate here. Find out the types of Texas probate here.
by Robert Ray | Last updated Nov 4, 2022 | Contesting Wills, Heirship, How to probate a case, Inheritance
Heirship Proceedings in Texas
The Texas Estates Code provides that the probate court
“may conduct a proceeding to declare heirship when…a person dies intestate owning or entitled to property in this state and there has been no administration in this state of the person’s estate.” §202.002(1).
That section came into play in a case decided by the Amarillo court of appeals, 07-21-00137-CV.
In the case, a sister, Wanda, filed her brother’s will for probate, which left his property to her. She claimed that he lived in New Mexico but was domiciled in Texas. The will was admitted to probate, but the estate was never closed. Almost two years after the will was admitted to probate, a woman, Ginger, filed a bill of review claiming that she was the brother’s common-law wife and asked the trial court to determine the brother’s heirs. Ginger claimed that she was a pretermitted spouse under New Mexico law and that New Mexico law applied because the brother/husband lived in New Mexico.
Wanda filed a motion to dismiss the claim because the brother left a will, and she claimed that the court could not have an heirship determination if the decedent had a will, relying on §202.002(1). The trial court agreed and dismissed Ginger’s claims.
When Ginger appealed, the court of appeals reversed and sent the case back to the trial court to hear Ginger’s claims. The appeals court ruled that §202.002(1) did say that a person had to die intestate before an heirship determination could be heard, but the additional language “and there has been no administration in this state of the person’s estate” made an exception for Ginger to have an heirship determination. Wanda cited a Texas Supreme Court which dismissed an heirship determination, but the appeals court noted that the administration had been closed in that case, it had not been closed in this case.
What Could Have Done
If Wanda had closed the case, would that have helped? There are reasons to leave an estate open, but in this case, if Wanda knew Ginger was around and might do something, it would have been better to close the estate.
by Robert Ray | Last updated Nov 1, 2022 | Heirship, How to probate a case, Inheritance
Bills of Review in Texas
When a case doesn’t turn out the way you want in the trial court, you appeal to the court of appeals. But what can you do if you didn’t know about the case or didn’t learn of a trial setting until an appeal was too late? A bill of review allows you to bring the problem to court. Texas has two types of bills of review, an equitable bill of review and a statutory bill of review. The difference between the two was highlighted in a recent case.
In Gill v. Bordokas, 14-21-00356-CV. from the Houston 14th court of appeals, a man died intestate. One of his daughters filed an application to determine heirship where she alleged that he was not married and that she and her siblings were his only heirs. Within the time allowed, a woman filed a motion for new trial claiming that she was the common-law wife of the man. The woman did not request a hearing and the motion for new trial was eventually overruled by operation of law. Seventeen months later, she filed a statutory bill of review asking the court to overturn its order on heirship. The judge denied the bill noting that she did not pursue her motion for new trial when she could have. The alleged common-law wife appealed.
Equitable Bill of Review
The appeals court first discussed the court’s holding that the woman was not diligent. It listed the requirements for an equitable bill of review which requires diligence.
To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s inability to make the claim or defense was unmixed with any fault or negligence on the petitioner’s own part...When cases involving res judicata have arisen in the context of an equitable bill of review, there is normally a failure by the petitioner to satisfy one of these three elements.
However, the court stated that the alleged common-law wife filed a statutory bill of review, not an equitable one.
Statutory Bill of Review
But this case involves a statutory bill of review, which Gill sought under Section 55.251 of the Texas Estates Code. That statute provides that “an interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” See Tex. Est. Code § 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a matter or proceeding relating to a decedent’s estate,” which includes a determination of heirship). By its plain language, this statute authorizes a bill of review in a probate proceeding merely upon “a showing of error,” without the other elements required by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain this statutory bill of review even if the petitioner did not exercise the amount of diligence that would be demanded in the context of an equitable bill of review.
There is still a two-year statute of limitation on filing a statutory bill of review, but you don’t have to show that you were diligent.
by Robert Ray | Last updated Feb 4, 2021 | How to probate a case, Probate, Wills
Can A Testator Make Hand Written Changes To A Will?
As a general rule, if a will is not “wholly” in the handwriting of the testator, it must be attested to by two credible witnesses.
If a testator attempts to make handwritten changes to a written will, those changes must be witnessed by two credible witnesses unless the handwritten parts are separate from the written will, in which case it would be a codicil to the original written will not handwritten changes on the original will.
If a testator wants to make handwritten changes to the written will the changes must be attested to by two credible witnesses. So you might have a situation where there is a will that is attested to by two credible witnesses and then handwritten changes on the written will that are attested to by the same witnesses on the original will or by new witnesses just to the handwriting changes. In the last situation, you would have four witnesses in total! 05-12-01420-CV.
by Robert Ray | Last updated Dec 16, 2020 | How to probate a case, Types
In a case decided in 2019, 14-18-00256-CV, a man named Silverman wrote the following on a piece of paper:
10/26/15 Karen Grenrood is my executor, administrator, [and] has all legal rights to my estate in the case of my untimely or timely death. Very truly yours, [signature] Jerry VanDaveer [witness] Karen Grenrood [witness]
Karen was Silverman’s office manager. She filed the document for probate as a holographic will. A holographic will is one wholly in the handwriting of the testator. Such a will is legal in Texas and some states but illegal in other states like Florida. A holographic will does not need to be witnessed.
A contest was filed that opposed the document being considered as Silverman’s will. They claimed that the document did not dispose of property and was not made with testamentary intent. The trial court agreed. Karen appealed.
The appeals court first said “A court’s first duty in a proceeding to admit a writing offered for probate is to determine whether the writing is testamentary in character…The requisite testamentary intent does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but rather upon his intention to create a revocable disposition of his property to take effect after his death…The writing must be ineffectual as a transfer of any rights or interest before death…Further, courts often state that the writing must operate to transfer, convey, or dispose of the testator’s property upon death.” In other words, it does not dispose of property in the present which would be a gift. The transfer of property must take place on death.
The appeals court held that the document was a will that could be admitted to probate because it named an executor even if it did not transfer property. But they also ruled that there was a jury question whether or not the document transferred property to Karen with the words “has all legal rights to my estate…” The reversed the trial court and sent the case back to be tried by a jury.
So, every document must be reviewed on its own to see if it qualifies as a will.
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.