Frequently Asked Questions
Appeals FAQs
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A trial court is an initial or original court that hears a dispute. The judge presiding over the trial court is the trial judge and he or she oversees the case to its reasonable end. The trial court must have jurisdiction over the subject matter of the case and the parties to hear it; and the venue must be proper. Once jurisdiction and venue is set, the trial court has broad discretion to rule on matters during the pre-trial process leading up to the trial itself. During the trial, the trial judge presides over and determines what evidence gets admitted into the record. If evidence is not admitted into evidence, it is meaningless, cannot be considered by the jury and will be ignored by all appellate courts. A trier-of-of-fact will resolve fact issues based upon the admitted evidence. Ultimately, the trial judge enters rulings and an order or judgment that ends the dispute; The trial is the (first) level of analysis. In Texas, there is a whole system of intermediate appellate courts that must accept valid, non-frivolous appeals; in other words, if there is an appellate point, the parties at the trial level have an automatic right to appeal and the intermediate appellate court must accept the appeal. The Texas Supreme Court, on the other hand, has jurisdiction over any case presented to it, but only accepts appeals in its discretion, which is the last level of appeal in Texas.
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By filing a Notice of Appeal, a party gives the trial court, the parties, and the appellate court notice of his, her, or its intent to request an appellate review of a trial court decision memorialized in a written order or judgment.
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An appeal is a request to a higher court to review the process and a decision or decisions of a trial court (a lower court) for error and to change an alleged erroneous decision.
The goal of an appeal is to obtain a reversal of an erroneous decision by a trial court. The appellate court reviews the trial court record, i.e., all admitted evidence (testimony, documents, or otherwise), with an eye – directed by the parties – toward possible error by the trial court. The options for appellate decision are to affirm (find no error or no reversible error), reverse and remand (find an error and send it back to the trial court for a “re-do” after correcting it), reverse and render (find an error and no need to send it back to the trial court because its decision decides the case once and for all) or some combination of all of those, based upon numerous different pending issues. -
In Texas, there is a whole system of intermediate appellate courts containing fourteen districts that must accept non-frivolous appeals. If an error was made at the trial level by the judge or a party or whomever, there is an automatic right to appeal and the intermediate appellate court must accept the appeal. Appellate jurisdiction does not attach until the ruling, order or judgment becomes final, such that the trial court proceeding has ended and there are no remaining issues pending. It is possible to sever issues so they may be appealed. Appellate courts may also hear certain types of interlocutory appeals – meaning, appealing a ruling before the trial court proceeding is completed; special circumstances apply. Appellate courts may also consider mandamus appeals before a trial court case is final when a lower court abused its discretion in making its decision and there is no adequate remedy by appeal; statistically, very few mandamus appeals are granted.
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The highest court in Texas is the Texas Supreme Court. The Texas Supreme Court has jurisdiction over cases from an appellate court and, in some instances, even directly from a trial court, but only accepts appeals at its discretion. It accepts only a small number of appeals presented to it via a Petition for Review. It exercises its discretionary jurisdiction to settle matters that are not well-settled in the lower appellate courts or that present issues important to Texas jurisprudence. It is the last level of appeal in Texas.
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If an appellate court affirms a trial court decision, it is finding the trial court did not commit an error or did not commit a reversible error.
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When an appellate court reverses a decision of a trial court and remands it, it has decided the trial court made an error that warrants a change and sends it back to the trial court for additional proceedings. The additional proceedings could be anything from starting over with a new trial or for the trial court to hear and decide a particular aspect of the proceeding that will cure the error. Simply put, the trial court must change the decision made and hear the case as if the error had not occurred. A new final judgment must be entered by the trial court that is subject to an additional appeal.
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When an appellate court reverses a decision of a trial court and renders, it has decided the trial court made an error that does not require additional proceedings and is finally deciding the issue. The trial court does not get the case back or a second chance to determine it. The matter is decided and over for all time unless the subject to a Petition for Review to the Texas Supreme Court and it is accepted.
Advising Fiduciaries re: administrations and fiduciary obligations FAQs
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A fiduciary is a person/agent entrusted to act in the best interest of and protect the property of his/her/its principal.
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A fiduciary relationship can be established formally and informally.
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A formal fiduciary relationship is established by formal legal relationships, such as attorney client, doctor patient, executor beneficiary, trust beneficiary, attorney infact principal.
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An informal fiduciary relationship is created by a relationship of reliance where the principal is in a position of weakness, is infirm or is in need of assistance, and must rely upon his or her agent to act in her best interest.
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Fiduciary duties are the requirements and obligations of a fiduciary when acting on behalf of his/her/its principal and can, really, be anything that a fiduciary is supposed to do or should do to protect the principal, beneficiary, or ward. Fiduciary duties include, but are not limited to, the duty of disclosure, the duty to account, the duty of good faith and fair dealing, the duty to avoid hostility, the duty to avoid bias, the duty to avoid self dealing and the duty to always act in the best interests of the principal, beneficiary or ward.
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Yes.
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A principal, beneficiary, or ward can sue his or her fiduciary for violating or breaching their fiduciary duties, can seek an accounting, can seek their removal.
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Yes.
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Yes, if distributions are not large enough or are not being made pursuant to the requirements of the Trust or if there is an unreasonable delay in a required distribution.
Suits against Executors, Administrators, Trustees or Guardians FAQs
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A lawsuit against a fiduciary involves that fiduciary’s principal complaining about the acts of the fiduciary or inaction that harms the Estate or Trust or Guardianship Estate.
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No, but it is highly recommended. These cases get very complicated very fast and involve, in some instances, the shifting of the burden of proof. If you do not know what the latter is or means, then you need an attorney. In addition, fiduciary duties are complicated and difficult to understand difficult to understand whether they have been violated so it is very important to hire an attorney for these types of cases.
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It is not required, but it is highly recommended. Hiring an attorney that does not practice in the estate and trust area of the law would be like hiring a brain surgeon to operate on your heart. Both are doctors, but with different focus areas. The same is true in the law and the question is simple: Would you rather have someone that eats, breathes, and sleeps estate and trust litigation or an attorney who practices in some other area of the law representing you in an estate litigation case?
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Yes. The lawsuits get very complicated and hiring an attorney is a must; it is also legally required. As a fiduciary, you are acting in a representative capacity, i.e., a capacity other than yourself, and to represent someone other than yourself in Court requires you to be an attorney or to hire one. If you appear in Court representing “yourself” in a representative capacity, it is considered the unauthorized practice of law.
Guardianships and Guardians FAQs
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A guardianship is a court proceeding to appoint a personal representative for a ward, which is a person who is totally or substantially unable to care for himself/herself and/or their property/finances.
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A guardianship is the process of a duly qualified individual, either temporarily or permanently, taking over the rights of an incapacitated person in order to care for them or their property. A mental illness or mental commitment case is the process of a court finding that someone is a danger to himself or herself or others to the point that they need to be taken into custody and placed in a mental illness hospital or facility for short-term evaluation and treatment. A mental commitment is temporary, typically, lasting up to 48 hours absent additional orders from the Court that the commitment should be longer because the condition that caused the person to be a danger has not been resolved. The purposes and processes of guardianship and a mental commitment are completely different.
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A ward is a person, who is the subject of a guardianship
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Anyone can file for guardianship over a person thought to be incapacitated.
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An “interested person” has a right to file pleadings and be heard in any guardianship matter.
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An “interested person” in a guardianship matter as defined in Section 601(15) of the Texas Probate Code means: “an heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the estate being administered or a person interested in the welfare of an incapacitated person, including a minor.”
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Yes, a doctor’s letter must be filed simultaneously with the application for guardianship or as soon as practicable after its filing and, certainly, before any hearing on the guardianship matter.
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A doctor’s letter is required to provide the court with evidence that the proposed ward has some incapacity or is totally incapacitated.
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Yes, a court cannot acquire jurisdiction over a guardianship until the proposed ward is personally served with the application.
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In the event of an emergency, the law allows a court to order a temporary guardianship of the person, of the estate, or both.
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Certain other interested persons receive notice by certified mail, return receipt requested, but not necessarily personal service.
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Other than the personal service stated above, the only other notice (due process) in a guardianship is that a citation is posted on the courthouse bulletin board called “Posted Notice”.
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A guardianship cannot be heard is not “ripe” until the Monday following the expiration of ten (10) days from the date the notice is posted.
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Yes, the court is duty bound to appoint an attorney ad litem for the ward as soon as possible after the guardianship is filed.
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Yes, once service is completed and all parties are “ready”, a hearing is set and held to determine if a ward is incapacitated and, if so, who should be appointed to serve as guardian of his/her person and, if needed, guardian of his estate.
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A guardianship is usually filed in the county where the proposed ward resides, but can also be filed in the county where the proposed ward is located at the time the application is filed or the county where a substantial part of the proposed ward’s property is located.
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Everything that happens in a permanent guardianship, happens in a temporary guardianship, except that a temporary guardianship can be heard immediately and all of the procedure of a permanent guardianship is condensed into a day or two so all of the procedures are streamlined and it is temporary, i.e., it can last no longer than sixty (60) days unless the guardianship is contested.
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Everyone, including the proposed ward, is presumed to have their capacity until he or she is proven to lack capacity.
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Personal service is required on the spouse of a proposed ward in the guardianship of an adult and on the parents in a guardianship of a child.
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A court must make decisions that are in the best interest of the ward.
Mediation v. Arbitration FAQs
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ADR is a series of methods utilized to resolve disputes outside of the court system. These methods can be used in court cases, but also within families, churches, communities, and the like without involving the court system.
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Some Alternative Dispute Methods are: mediation, arbitration, direct negotiation, conciliation, collaborative negotiation, or a combination of any of them.
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Mediation is a process where all of the Parties come together to discuss their case with an independent third party person (the mediator), who will then work with each side arguing for or against their position to make everyone see the realities of their case in an effort to facilitate a settlement of some or all of the issues.
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Both mediation and arbitration are alternative dispute resolution (ADR) methods. Mediation is a process where all of the Parties come together to discuss their case with an independent third party person (the mediator), who will then work with each side arguing for or against their position to make everyone see the realities of their case in an effort to facilitate a settlement of some or all of the issues. Mediation is not binding, meaning, neither the mediator nor anyone associated with the mediation process, can make a party settle their case. The settlement, if one is reached, is done solely and completely upon the desire of the Parties to end their dispute and the negotiation of a settlement that resolves all issues, so that the case is over and completed. An arbitration, on the other hand, involves impaneling 1 or more professionals to consider a dispute as a tribunal, hear evidence and argument in order to make a decision that resolves the case or dispute. Arbitration is binding and, typically, cannot be overturned or appealed.
Will Contests FAQs
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A will is a document executed according to the law that establishes a person’s desires for their property after their death.
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No, the right to execute a will cannot be abridged or taken away.
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Unlimited, everyone can execute as many wills or codicils as they want.
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If all of the requirements for the creation of a will in the state where the will is signed are met, then a will may be valid as soon as it is signed, but it is not binding.
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A will is not binding until (1) after the person dies and (2) after it is admitted to probate.
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Probate is the legal process in which a Court determines the validity of a deceased person’s last will and testament upon a proper filing of an application to probate a will.
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The executor named in the will or any person who qualifies as an “interested person”, i.e. a person who has an interest in the estate of the Decedent, may file an application to probate a will.
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According to Texas Estates Code §22.018, “interested person” or “person interested” means: “(1) an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; and (2) anyone interested in the welfare of an incapacitated person, including a minor.”
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Standing is the right of a person to be heard, participate in or interfere in an Estate and its administration. Generally speaking, an “interested person” has standing. However, standing in an Estate also requires analysis about whether the “interested person” has a pecuniary (monetary) interest in the Estate. If a creditor establishes a claim, the claim is paid before any inheritance is ever paid, so the identity of beneficiaries or heirs and their shares of an Estate are irrelevant to the claim; therefore, a creditor does not have a pecuniary interest in the outcome of the Will Contest. However, the appointment of an executor or administrator – who is appointed and whether he, she or it qualify – could affect a creditor monetarily. So, an “interested person,” will always have an interest in an Estate, but may not always have standing.
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Generally, the application to probate a Will should be filed with the County Clerk in the county where the decedent was domiciled and had his or her fixed place of residence at the time of death. The decedent’s intent about the location of his residence at the time of his death is determinative. Sometimes, a testator establishes his or her domicile and then loses his or her incapacity and gets moved to a different county where he or she dies. The county where the decedent lived when he or she was last able to formulate the intent to establish that domicile as his or her own is the county where the Will should be filed for probate, not the county of death where he or she was moved for care and last illnes.
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Generally, an application to probate a will must be filed for probate within four (4) years of the date of death of the Decedent, unless it can be shown that person filing the will for probate after four years was “not in default” for failing to file it within the prescribed time-frame, i.e., the late filing was not their fault.
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No, a probate proceeding in Texas is an “in rem” proceeding, which means the court’s jurisdiction is over the property, not over any particular person; therefore, personal service is not required. The only notice is a Citation that is posted on the Courthouse “bulletin board,” which is, now, also posted online. Other states are very different and may require personal service.
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Other than the personal service stated above, the notice (due process) in relation to an application for probate is that a citation is posted on the courthouse “bulletin board,” which is now posted online, and is called “Posted Notice”.
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An application for probate cannot be heard, i.e., it is not “ripe,” until the Monday following the expiration of ten (10) days from the date the notice of the application is posted. Before that “Monday next after ten-days” period expires, the Court lacks jurisdiction to hear the matter and any order entered during that period is void – meaning, it is as if it was never signed.
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A Will Contest is a lawsuit challenging the validity of a Will or to determine which of multiple wills is valid.
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Any “interested person” (defined above) may file a will contest. A will contest may be filed before the Will is admitted to probate – a pre-probate contest – leaving the burden to prove the Will valid upon the proponent of the Will (the “interested person”) that offered it. Once the basic facts showing the requirements to make a Will in Texas were met, the burden shifts to the contestant to prove the Will invalid. After a Will is admitted to probate – a post-probate contest – it is presumed valid, but may be contested by an “interested person” with a pecuniary interest in the outcome of such contest for up to two years following the date the Will was admitted to probate, i.e., the day before the second anniversary of the date of the court order admitting the Will to probate. The contestant in a post-probate contest has the burden to prove the Will is invalid.
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The typical grounds for contesting a will are (1) lack of testamentary capacity (different than mental capacity) and (2) undue influence; other grounds may be forgery, fraud, lack of testamentary intent, failure of formalities and solemnities, i.e., the requirements for executing a valid a will have not been met.
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A Will Contest can be filed at any time prior to a will being admitted to probate – a pre-probate contest – there is no time limit. However, if the Will has been admitted to probate a Will Contest – a post-probate contest – may be filed at anytime up to two years following the date the Will was admitted to probate, i.e., it must be filed no later than the date, which is the day before the second anniversary of the date the court signed order admitting the Will to probate. For example, if the Order Probating Will was signed on October 31, 2020, the Will Contest must be filed on or before October 30, 2022.
Estate Administrations FAQs
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An estate administration involves gathering the assets of the estate, paying the decedent’s debts, and then distributing the remaining assets to any heirs of the estate. An estate administration is necessary whenever an individual dies as his/her estate will need to be collected and managed.
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An independent executor is the personal representative of an estate either specifically named in the Will or, if died without a will, agreed to by all of the beneficiaries. An independent executor has the power to make all estate-related decisions. Like any executor, an independent executor is required to 1) collect the assets, 2) pay off any debts, and 3) distribute the assets according to the Will. An independent executor, additionally, is required to 1) provide notice to potential creditors and 2) provide an inventory of the Estate’s assets to the Court.
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Dependent administration is more closely managed by the court. In a dependent administration, the Court oversees every sale/distribution of assets and every payment of liabilities owed. An independent estate administration is overseen almost entirely by the independent executor.
Heirship Disputes FAQs
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An heirship is the process of distributing a persons estate after their death when that person (the decedent) did not have a valid will at the time of death.
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The property will pass to the decedent’s heirs, which are determined at the time of the decedent’s death. Heirs are those persons related to the decedent through blood or marriage. The law looks to the spouse first, if there is one, then to any children of the decedent, then to any other relatives of decedent such as parents or siblings. Once the number of heirs is ascertained the property, both real and personal, will be split between those surviving heirs. This process has been implemented in order for the state to attempt to make a fair distribution of the decedent’s property when there is no direction given by the decedent in a will upon which distribution would be based.
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In order to avoid the statutory heirship procedure, one may either prepare a will or trust, or both, which will ensure that their wishes for how their property should pass are fulfilled. Wills may either be done wholly by the hand of the person wishing to create the will (the testator) or it may be drafted by an attorney, signed by the testator, and attested to by 2 disinterested witnesses over the age of 14. A trust should also be drafted by an attorney, then signed by the grantor. Additionally, both of these documents must be done while the testator or grantor has the capacity to create such a document and does so on their own volition.
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An heirship contest is usually brought by a person who believes that they are an heir to the decedent and have been wrongfully denied their rightful portion of the estate property. In order to have a chance to show they are an heir, they must file a suit in the probate court to declare heirship in which the court will determine who the proper heirs are and the respective shares of each of them. Proof of relation may be offered through testimony in open court, written testimony of the decedent, or through genetic testing done in compliance with the law and presented to the court. Once all evidence is offered the court will make their determination and enter a judgment declaring the persons and shares to be passed from the estate.
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Texas is a community property state and as such a surviving spouse will have rights to both the separate property and the community share of the deceased spouse. The surviving spouse is entitled to the decedent’s entire share of the community estate so long as any surviving children are also the children of the surviving spouse, if they are not then the surviving spouse would receive 1/2 of the community property and the other children would receive the other 1/2 of the community property. The distribution of separate property also depends on the children of the estate. If there are children, the surviving spouse takes 1/3 of the decedent’s personal estate and receives a life estate in 1/3 of the decedent’s land, with the remainder going to the children. If there are no children, the surviving spouse receives all of the personal estate and 1/2 of the decedent’s land; however, if there were no other relatives of the decedent then the spouse would take all of the land as well. These rules apply to spouses through formal marriage and common law marriage.
Common-Law Spouse cases FAQs
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A common-law spouse is one of the parties in a common-law marriage. Such a marriage is proved by evidence that a declaration of their marriage has been signed OR that they agreed to be married, lived together in Texas after the agreement, and represented to others that they were married. Both parties must be over 18 and have the capacity to contract at the time the agreement is made.
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Common-law spouses are considered by the state to be legally married, therefore, they enjoy all of the rights and benefits bestowed upon any other married couple. For legal purposes, a common-law marriage is no different than a formal marriage.
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Common law marriages may end through death, divorce, or annulment, the same as a formal marriage. In Texas, there is no such thing as a common-law divorce. Any divorce or dissolution of marriage must be done formally through the court system and all of the requirements of a normal divorce.
Claims against Estates FAQs
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If a person or business believes he/she or it is owed money by the decedent, then he/she may file a claim with the administrator of the estate requesting payment from the estate. The administrator may either approve or deny the claim. If denied, then the claimant can demand a hearing to have his/her rights heard by the Court.
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A claim of a secured debt (guaranteed by collateral) has until the court closes its proceedings on the estate before they file their claim. A claim of unsecured debt (no collateral) must be filed within 4 months of the publication of the legal ad notice.
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The claim must be supported by proper papers which include the account number, amount owed, and type of debt. A statement regarding the validity of the debt is needed as well. A copy of the bill will usually suffice.
Texas Statutory Probate Courts FAQs
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A statutory probate court is a specialized court specifically created by the legislature to hear only estate and guardianship matters, and all “Probate Proceedings” and matters “Related to” estate and guardianship matters. It has concurrent jurisdiction with a district court to hear trust cases as well.
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A statutory probate court has exclusive jurisdiction over all probate matters and all guardianship matters in that county.
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Yes, due to the affect the rulings of other courts might have on the administration and the judicial inefficiency of competing courts making rulings that affect the same administration, statutory probate courts have a special transfer power, which we informally call a “reach out and grab” power. If done timely, a statutory probate court can “reach out and grab” a case pending in another Court in any county in the state and transfer it into the same statutory probate court where the estate or guardianship is pending. In order to do so, the case has to be “related to” a probate matter already pending in that court and it cannot interfere with the general jurisdiction of a district court to hear personal injury matters. Yet, another reason to hire an attorney well versed in probate law and statutory probate court jurisdiction; there are advantages that can be gained or lost depending on the lawyer’s knowledge of the same.
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There are 18 statutory probate courts in Texas.
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Bexar County (San Antonio) (2), Collin County (McKinney) (1), Dallas County (Dallas) (3), Denton County (Denton) (1), El Paso County (El Paso) (2), Galveston County (Galveston) (1), Harris County (Houston) (4), Hidalgo County (Edinburg) (1), Tarrant County (Fort Worth) (2) and Travis County (Austin) (1).
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Randomly, by a computer.
Probate in Counties Without Statutory Probate Courts FAQs
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Generally, a county court has original probate jurisdiction, with all contested matters transferred to a county court at law, if in a county that has a county-court-at-law, in which case it will exercise original probate jurisdiction.
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A county court exercising original probate jurisdiction as granted and established by the legislature.
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County courts in counties without a statutory probate court and without a statutory county court at law, have judges that are, typically, not attorneys and have the jurisdiction (authority) to hear uncontested matters. When a matter becomes contested, there are options to get the case before an attorney (elected) judge to have the contested portion of the matter resolved.
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In counties having only one statutory probate court, that court is designated to hear mental illness, i.e., mental commitment cases. If the counties have multiple statutory probate courts, then one of the statutory probate courts is designated to hear all mental illness matters in that county.
Probate Jurisdiction FAQs
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A statutory probate court can also hear any matter that is a “probate proceeding” or is “related to” a “probate proceeding”.
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A probate proceeding is any matter relating to the estate of a decedent or a guardianship matter.
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A matter related to a probate proceeding includes, but is not limited to, any claim or lawsuit filed on behalf of or against an estate or guardianship or their property
Trusts FAQs
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A legal relationship, usually based upon an agreement, between a Settlor or Grantor (the person creating the Trust and delivering property to the Trustee) and the Trustee (the person or entity receiving and administering the property) to accept and administer the property delivered to the Trustee for the benefit of one or more Beneficiaries.
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Trusts are governed by Title 9 of the Texas Property Code which is generally referred to as the “Trust Code”.
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A trust may be created by: 1) a property owner’s declaration that he or she holds property as trustee for the benefit of another person; 2) a property owner’s transfer of property, during the property owner’s life, to another person as trustee for the benefit of a third person; 3) a property owner’s transfer of property, by the terms of the property owner’s will after the property owner’s death, to another person as trustee for the benefit of a third person; 4) an appointment under a power of appointment to another person as trustee of the donee of the power or for the benefit of a third person; or 5) a promise to another person whose rights under the promise are to be held in trust for the benefit of the third person.
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A trust is administered in accordance with the terms of the Trust document. However, there are certain mandatory rules, outlined under Section 111.0035 of the Texas Property Code, that cannot conflict or be altered by the terms of the Trust document. The terms of Title 9 of the Texas Property Code control the administration of the Trust where the Trust document is silent or if no Trust document exists.
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A Beneficiary is any person for whose benefit property is held in trust, regardless of the nature of the interest.
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The Trustee has a duty of full disclosure to the Beneficiary. The Beneficiary is entitled to receive copies of or the opportunity to inspect the Trust documents and all of the records relating to the administration of the Trust. At least annually, the Beneficiary is also entitled to receive a Trust accounting covering all transactions of the Trust since the last accounting or since the creation of the Trust, whichever is later. Requests for information or for an accounting from the Trustee should be submitted to the Trustee in writing. A Trustee that fails or refuses to fulfill his or her duty of full disclosure can be compelled to comply with such duty by a court of competent jurisdiction.
Trust Litigation FAQs
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An interested person may file a lawsuit in relation to a trust.
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An “interested person” in a trust matter as defined in Section 111.004(7) of the Texas Property Code means: “a trustee, beneficiary, or any other person having an interest in or a claim against the trust or any person who is affected by the administration of the trust. Whether a person, excluding a trustee or named beneficiary, is an interested person may vary from time to time and must be determined according to the particular purposes of and matter involved in any proceeding.”
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Any claim that pertains to a trust, its trustee or its administration may be filed by anyone who has an interest in the trust, i.e., an “interested person,” but the most common lawsuits that are filed are lawsuits to (a) set aside the trust or a trust amendment as invalid, (b) require an accounting, (c) construe a trust, (d) appoint or seek the removal of a trustee for mismanagement or breaching fiduciary duties, (e) determine a question that affects the administration of the trust, (f) ascertain beneficiaries, (g) force distribution within the distribution of discretionary standards of the trust (h) require final distribution, (i) relieve a trustee from any or all of his/her/its duties, among others.