Statutory Probate Judges And Why You Want One

Statutory Probate Judges And Why You Want One

by | 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.

What can go wrong if you represent yourself – part 2

What can go wrong if you represent yourself – part 2

by | Last updated Dec 12, 2020 | Contesting Wills, How

Representing yourself in court

I have written before about what can go wrong when representing yourself in court. Look at this post and this one. The law refers to you as a pro se litigant.

Many people ask about representing themselves in court. They also want to know how to do it. One of the problems with probate matters involving inheritance issues or contesting a will is that the estate is considered a separate person. So while you can represent yourself in court, you can’t represent the interest of the estate. There were two recent cases dealing with pro se litigants and inheritance issues.

The first one involved a man attempting to probate a will and getting appointed as the independent executor as the will specified. Because he wasn’t an attorney, he could represent himself but could not represent the estate so while the judge did admit the will to probate he refused to appoint the man the independent executor of the estate. 13-17-00555-CV.

The second case involved a man dying during an appeal. The man’s attorney withdrew because he couldn’t get the man’s wife to cooperate with him. The wife attempted to represent the estate and filed the appellate brief. The appeals court dismissed the appeal because the wife was not an attorney and therefore could not represent the estate. 08-20-00052-CV.

Can you represent yourself?

Yes. Is it wise, no. And remember, you can’t represent someone else in court and an estate is someone else so you can’t represent an estate in court, only yourself.

Learn the First Step in Contesting a Will in Texas

What Happens When You File An Inheritance Dispute In The Wrong Texas Court

Problems filing in the wrong court

Problems filing in the wrong court

by | Last updated Dec 16, 2020 | How, How to probate a case, Spouses, Who

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.

What can go wrong if you represent yourself – part 1

What can go wrong if you represent yourself – part 1

by | Last updated Dec 16, 2020 | How

Contesting a will in Texas and representing yourself

Representing yourself in a Texas will contest is like operating on yourself. Can you do it? Yes. Is it safe to do it? No.

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.

Thanks for visiting!

What can go wrong if you represent yourself

In a 2020 case, a man contested the will of a woman who he claimed was his common-law wife. Texas refers to these marriages as informal marriages.

He was quickly thrown out of court because he represented himself and did not know what he was doing. When reading the case, it seems that he had a good case or at least a case that could have been tried to a jury. But because he was representing himself and did not know what to do, he lost before the case ever got to a jury. The decision of the appeals court is full of examples of things that he failed to do to be able to maintain his claim. The court was not able to do anything but dismiss his case. 07-19-00283-CV, 07-18-00434-CV.

The moral of the story is this: if you represent yourself, the court cannot give you any help. You have to know what is needed and provide it in a timely manner. If you don’t, your case will be dismissed before anyone decides the merits of your case.

Removal Suits May be Subject to the Texas Anti-SLAPP, TCPA Law

Removal Suits May be Subject to the Texas Anti-SLAPP, TCPA Law

by | Last updated Dec 16, 2020 | How, Removal

Problems with Removal of Trustee or Executor

Trustees and executors are fiduciaries and owe duties to the beneficiaries of the trust or estate that they are in charge of. If they breach those duties, they can be removed.

The Texas Anti-SLAPP, TCPA, law was established to protect a person’s right to free speech, free association and the right to petition. When a suit is filed and a motion to dismiss under the Texas Anti-SLAPP, TCPA law is filed, the suit stops and the judge must rule on the motion. If he grants the motion, the suit is dismissed and the person who brought the suit is required to pay the attorney’s fees of the person sued. He may also have to pay expenses and sanctions. The law is a draconian sword hanging over suits.

The law has been applied in many different suits like divorce actions, collection suits, contract cases, etc. How far the law reaches is still being ironed out in Texas.

Recently, there was a suit to remove a trustee. Does it apply to removal actions?

A suit was filed to remove a trustee. The trustee filed a motion to dismiss under the Texas Anti-SLAPP, TCPA, law. You can read about it below.

Suit to Remove Trustee as a Texas Anti-SLAPP, TCPA Claim

Does the Texas Anti-SLAPP, TCPA law apply? Well, in the case, the court assumed without deciding that it did then went on to rule that the people against whom the motion to dismiss was filed met their burden and proved their defense. The motion to dismiss was denied.

If the people who filed the removal action had not met their burden, their removal suit might have been dismissed and they would have had to pay the attorney’s fees of the trustee. Just be aware!

Learn the First Step in Contesting a Will in Texas

by | Last updated Jan 3, 2020 | How

The first thing that you must do in Texas when you have an idea that you may be contesting a will is to contact a Texas attorney and you should contact the lawyer as soon as possible.

Since contesting a will is litigation, you need to contact a lawyer who is familiar with litigation. Some lawyers mainly have an office practice where they draft documents like wills and estate plans for their clients and handle cases that do not normally involve litigation. Trials are seldom or never part of their practice.

Other lawyers have litigation practices where most of their cases involve suits filed in court. They may or may not be Board Certified. Since a will contest that can’t be settled involves a suit filed in court, a trial attorney can help you decide if you have a good case. He can also evaluate the possiblity of settling a case without filing suit in court.

Continue here to discuss how to successfully contest a will in Texas

By a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

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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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