As the old cliché goes, the only things certain in life are death and taxes. Whether a party dies in the midst of a lawsuit or the circumstances of the lawsuit arise out of the manner of death, a little bit of probate knowledge can go a long way if you’re a litigator. The goal of this article is to provide litigators a short, but useful, glimpse into the probate world on matters that may inform your case.
Tip #1: Pay Attention to Standing
For the purpose of standing to participate in a probate proceeding, the Texas Estates Code only authorizes “interested persons.” (Tex. Est. Code § 22.018). The Texas Estates Code defines this as “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.” (Id.).
While the Texas Estates Code does not define creditor, it does define “claims” to include the following: (1) liabilities of a decedent that survive the decedent’s death, including taxes, regardless of whether the liabilities arise in contract or tort or otherwise; (2) funeral expenses; (3) the expense of a tombstone; (4) expenses of administration; (5) estate and inheritances taxes; and (6) debts due a decedent’s estate (Tex. Est. Code §22.005).
Tip #2: Understand the Role of the Personal Representative of the Estate
The personal representative, the individual with legal authority to act on behalf of the estate, is called an “executor” when appointed under a will and referred to as an “administrator” in an intestate administration (see Tip #6 for a discussion on intestate estates).
There are two types of estate administration in Texas: dependent and independent administration. The difference impacts the extent to which the administrator/executor has authority to act with without court supervision.
An independent administrator/executor generally operates free from court supervision or oversight. Other than a few duties such as paying taxes, bond, and insuring estate property, a dependent administrator/executor is subject to court supervision (Tex. Est. Code § § 351.051, 351.052). Thus, most activity in a dependent administration requires court permission, including expending estate funds, paying creditor claims, making distributions, and filing suit on behalf of the estate. A dependent administrator/executor must also file an annual accounting, essentially a full audit of the estate activity. In short, a dependent administration is a longer, more costly method of probating an estate than an independent administration. Nevertheless, in some circumstances a dependent administration is unavoidable—in other circumstances, it may be desirable.
If the decedent dies with a will, the will usually governs whether the administration is dependent or independent. If a will does not provide for an independent administration, the devisees under a will can agree to create one (Tex. Est. Code § 401.002). In the event the decedent died without a will, the heirs can agree to an independent administration (Tex. Est. Code § 401.003). Note, however, if an heir is a minor, many courts may require a dependent administration.
Tip #3: An Estate Cannot Sue or Be Sued
A claim against an estate must be brought against the personal representative of the estate, not the estate itself (Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005)). In turn, actions on behalf of the estate must be brought by the personal representative (Id.) Before a personal representative can legally act on behalf of an estate, he or she must be appointed as personal representative by a court.
Tip #4: Jurisdiction Can Be Tricky
Appropriate jurisdiction in a probate matter depends on the nature of the matter and whether the county has a statutory probate court or, in its absence, a county court at law exercising original probate jurisdiction. Generally speaking, a county with a statutory probate court exercises broader jurisdiction than any other court and has concurrent jurisdiction with district court on some matters, including personal jury, survival, and wrongful death claims. Be sure to carefully review Chapters 31 and 32 of the Texas Estates Code.
Tip #5: Is there a Will? Is it Valid?
The requirements of a valid will under the Estates Code are as follows: (1) the will must be signed by the testator or by another person at his direction and in his presence, (2) the will must be attested by two or more credible witnesses over fourteen years of age, a (3) the witnesses must sign in the presence of the testator (Tex. Est. Code §251.051).
A handwritten will, also referred to as a holographic will, is valid if it is entirely in the handwriting of the testator and signed by her (Tex. Est. Code §251.052).
Is the will the original? Unless the person offering the will for probate provides the original will, the probate applicant must overcome the statutory presumption that the original will doesn’t exist because the testator revoked it (Tex. Est. Code §256.054).
Tip #6: Intestate v. Testate Estates
An intestacy occurs when an individual dies without a valid will. In this circumstance, the Texas Estates Code steps in to define the legal heirs. The process of making this determination is called a determination of heirship. This process generally consists of filing an application to determine heirship which sets out, among other things, the heirs at law and division of the estate among the heirs. Upon filing the application, the court appoints an attorney ad litem to represent unknown heirs and heirs under a legal disability. It is the job of the ad litem to investigate the heirship to determine whether there are additional heirs beyond those stated by the applicant and to represent minors and incapacitated heirs.
As sometimes happens, family members will omit heirs, whether intentionally or not. Therefore, a court order determining heirs should be obtained in the event there isn’t a valid will or the will does not dispose of all the decedent’s property.
A testate administration occurs when someone dies with a valid will. In such case, and assuming there is not a partial intestacy, the will determines the distribution of property.
Tip #7: Be Mindful of Common Law Marriage
The determination of whether someone is married, and the beginning date of marriage, is fairly straightforward when there is a formal marriage. But Texas also recognizes informal or common law marriage, which makes the question of marriage and the beginning date of the marriage far more complicated.
Per the Texas Family Code, Section 2.401, the creation of an informal marriage can occur in one of two ways: by filing a declaration of an informal marriage with the county clerk, or by meeting the elements of an informal marriage outlined in the Texas Family Code.
The filing of a declaration of an informal marriage establishes a legal marriage from the date specified on the document onward. Many counties provide search tools allowing individuals to search online for recorded declarations of informal marriages. These documents allow couples to select a beginning date of their marriage; thus, the start of the marriage may be well before the document is signed and recorded.
Without a declaration of informal marriage, a party can establish an informal marriage by meeting the three elements outlined in the Texas Family Code: (1) agreeing to be married; (2) after agreeing to be married, living together in Texas as spouses; and (3) representing themselves to others as a married couple.
Whether there is a will or intestacy, the allegation of an informal marriage will impact the estate administration.
Tip #8: For the Personal Injury Attorneys
Under the Texas Civil Practice and Remedies Code, a wrongful death action may be brought by the surviving spouse, children, and parents of the deceased, or any one such individual on all of their behalf (Tex. Civ. Prac. & Rem. Code §71.004). If none of these individuals bring an action within three months of death, the administrator or executor of the decedent’s estate must do so (Id.). Unlike a wrongful death action, a survival action belongs to the decedent’s estate (Tex. Civ. Prac. & Rem. Code 71.021). Accordingly, only personal representatives of an estate can sue to recover estate property under the statute (Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971)).
There you have it—eight tips that will hopefully better equip you should your litigation practice encounter one of life’s certainties.
Elizabeth Brenner is an attorney with Burns Anderson Jury & Brenner in Austin, where she practices probate and trust litigation, probate administration, and guardianship. She began her career in public interest work.