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PROBATE ADMINISTRATIONS

Probate of a Will Outside Four Years:
Please make yourself familiar with Tex. Est. Code § 258.051!  Testimony at the time of hearing will be required to establish the intestate heirs of the decedent to determine if notice was properly given.   If an heir of the decedent dies after the decedent and was not served before death, service should be had on the personal representative of the heir’s estate.  If there is no personal representative then the Court considers this to be an heir whose address cannot be ascertained by the applicant with reasonable diligence.  As such the applicant should advise the court that an ad litem is necessary to protect the interest of said heir pursuant to the statute.
 
Probate of a Will Not Produced: 
Please make yourself familiar with Tex. Est. Code § 258.002!  Testimony at the time of hearing will be required to establish the intestate heirs of the decedent to determine if notice was properly given.   If an heir of the decedent dies after the decedent, service on the heir’s heirs is not appropriate unless there has been a formal heirship completed; in which case the order declaring heirship must be admitted as an exhibit at the hearing.  If an heir of the decedent dies after the decedent and was not served before death, service should be had on the personal representative of the heir’s estate.  If there is no personal representative then the Court considers this to be an heir who is not a resident of Texas.  Therefore, the applicant should obtain service of the citation by publication pursuant to the statute.  No substitute service motion is necessary, as the statute provides for the publication.  The applicant should advise the court that an ad litem is necessary to protect the interest of said heir pursuant to TRCP 244.

PROOF REQUIRED AT HEARING:

Our appellate courts have helped clear up some confusion with regard to evidence required to admit a non-produced will to probate.  Attorneys often offer witness testimony to prove up a self-proved, non-produced will.  This is because, Texas Est. Code § 256.156(a) directs applicants offering a non-produced will to Tex. Est. Code §§ 256.153 (proof of execution of attested will) & 256.154 (proof of execution of holographic will) creating the impression that to prove up any non-produced will (whether self-proved or not) such witness testimony is necessary; however, this is not the case.[1]  In re Estate of Sandeford is particularly clear in this regard stating,

Appellant argues that there was insufficient evidence under Section 256.156(a), which requires that "[a] will that cannot be produced in court must be proved in the same manner as provided in Section 256.153." Est. § 256.156(a). Section 256.153, however, applies to a will "that is not self-proved." Est. § 256.153(a). And a "will that is self-proved . . . is not required to have any additional proof . . . to make the will valid." Est. § 256.152(b). We must decide whether Randy had to meet the requirements of Section 256.153, although he presented a self-proved will.

The court in Bracewell was presented with the same issue we face now. There, the court concluded that a valid self-proving affidavit attached to a photocopy of a will made it unnecessary for the will's proponent to meet the requirements of Section 256.153.  Bracewell, 20 S.W.3d at 26. We agree. The trial court found that the will was self-proved, and we held that Appellant's arguments in regard to the validity of Elwin's signatures did not invalidate the self-proving affidavit. Therefore, because the will was self-proved, Randy met his burden of proof under Section 256.156(a). We overrule Appellant's challenge under Section 256.156(a).

[1] See Bracewell v. Bracewell, 20 S.W.3d 14, 2000 Tex. App. LEXIS 1210,



Independent Administration Handbook
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Independent Administration Handbook (Spanish)
Dependent Administration Handbook (Spanish)

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Affidavit in Lieu of Inventory
             Please file an AILOI only if you are timely.
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Excel Spreadsheet for Inventory
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