When is a Probate Matter Contested for Venue or Transfer Purposes?

Robert Ray


In small counties in Texas, the county judge hears probate matters. The county judge is an administrative position similar to that of a mayor in a city. The judge does not have to be an attorney. Since most probate matters just involve filing the will for probate and having the judge admitting it to probate, a non judge can handle this administrative process. If the will, or any part of the probate, becomes contested the judge “may” on his own or “shall” on the motion of any party transfer the case to a court with a judge who is an attorney. If the county has a county court at law, the probate will be transferred there. If the county does not have a county court at law, the case will be transferred to a district court in the same county unless any party request a statutory probate judge be assigned to the case. In that event, the county court must transfer the case to a statutory probate judge. A statutory probate judge is a judge who only hears probate matters. Only the larger counties have statutory probate judges so a judge from a large city would be assigned to hear the small county contested probate matter even though the judge is not from that county.


In a 2013 case, a wife filed her husband’s will for probate on the day he died. She filed the will in Zapata County a small Texas county without a county court at law. A few days later, the wife filed a different petition seeking a declaratory judgment, injunctive relief and damages based on allegations of breach of fiduciary duty, fraud on the estate, tortious interference with inheritance, undue influence and conversion against the son of the deceased. At the same time, she filed a motion to transfer “the cause” to the district court in the same county. The case was transferred to the district court. There was no indication in the record that the son had been given prior notice of any of the hearings. Once the son became aware of what had happened, he filed motions contesting the jurisdiction of the district court and filed a motion in the county court to transfer the case to a statutory probate judge. All his motions were denied. He then filed a special appeal to the court of appeals. The court of appeals held that since the transfer to the district court was made before any contest had been filed, the transfer was invalid. It takes two to have a contest and just because the wife thought there would be a contest there was no contest since the son was not a party to the probate at the time. A county court can’t transfer the probate case to a district court unless there is a contest of some sort between parties. The court pointed out that a case could be transferred to a statutory probate judge before a matter becomes contested but the statute contained no similar provision relating to the district court. The appeals court went on to say that all orders issued by the district court were void since it didn’t have jurisdiction. The case was sent back to the county court where a transfer to a statutory probate judge could be made. 04-13-00404-CV. The remedy if the case is transferred to the district court is to file a plea to the jurisdiction in the district court and ask that the case be returned to the county court. 03-17-00249-CV. If that doesn’t work a mandamus appeal to the court of appeals is necessary. A 2020 case held the same, 10-20-00128-CV & 10-20-00129-CV.

Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.


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Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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