First Monday after at least 10 days from the date the citation was served. PC § 33(g) EC §...
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![Page 1: First Monday after at least 10 days from the date the citation was served. PC § 33(g) EC § 51.104.](https://reader036.fdocuments.us/reader036/viewer/2022062322/56649e995503460f94b9c08f/html5/thumbnails/1.jpg)
Hearing on Application
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When?
First Monday after at least 10 days from the date the citation was served. PC § 33(g) EC § 51.104
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General Proof
All applicants must prove these things.
Often in form of affidavit by applicant or applicant’s attorney.
PC § 88(a)
EC § 251.151 (testacy)EC § 301.151 (intestacy)
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General Proof
1. Person is dead Death certificate Circumstantial evidence ▪ PC § 72▪ EC Chapter 454
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General Proof
2. 4 years have not elapsed between: Date of death Date of application
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General Proof
3. Court has jurisdiction and venue.
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General Proof
4. Proper citation.
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General Proof
4. Personal representative is qualified under PC § 77; EC § 304.001: Person named, if will. Spouse Principal heir or beneficiary Any heir or beneficiary Next of kin Creditor Person of good character Anyone else not disqualified
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General Proof
4. Personal representative is qualified under PC § 77; EC § 304.001: If several individuals are equally
entitled (e.g., four children of intestate widow), court may either:▪ Appoint the one person court thinks
most likely to do the best job, or▪ Appoint jointly.
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General Proof
5. Personal representative is not disqualified under PC § 78; EC § 304.003: Minor Incompetent Convicted felon Non-Texas resident without resident
agent Unauthorized corporation Not deemed unsuitable by court
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General Proof
5. Personal representative is not disqualified under PC § 78; EC § 304.003: In re Estate of Robinson – p. 83
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Proof to Probate Will
1. Requirements of Valid Will▪ PC § 84(a)▪ EC § 256.152
If will self-proved, no additional proof needed of formality compliance.
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Proof to Probate Will
1. Requirements of Valid Will – What?▪ PC § 84(a)▪ EC § 256.152
If will not self-proved, need proof that:▪ Testator had legal capacity at time of
will execution▪ Testator had testamentary capacity at
time of will execution▪ The will complies with all formalities
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Proof to Probate Will
1. Requirements of Valid Will – Attested – How?▪ PC § 84(b)▪ EC § 256.153
Sworn testimony or affidavit of one or more of the attesting witnesses.
Special procedures if witnesses unable to attend or are dead.
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Proof to Probate Will
1. Requirements of Valid Will – Holographic – How?▪ PC § 84(c)▪ EC § 256.154
Two witnesses to testator’s handwriting.
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Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
1. Same testimony as for produced will.
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Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
2. Cause of non-production.
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Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
3. Cause satisfies court that original cannot be found by reasonable diligence.
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Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
4. Contents substantially proved by testimony of a credible witness who:▪ Read the will,▪ Heard the will read, or▪ Can identify a copy.
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Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
In re Estate of Catlin, 311 S.W.3d 697 (Tex. App.—Amarillo 2010, pet. denied).
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Proof to Probate Will
2. Will has not been revoked.▪ PC § 84(a)▪ EC § 256.152
Presumption of non-revocation▪ Ashley v. Usher – p. 93▪ Source of will “normal”
Person to whom testator delivered it, or Among testator’s valuable papers
▪ No suspicious circumstances
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Proof to Probate Will
2. Will has not been revoked.▪ PC § 84(a)▪ EC § 256.152
Presumption of revocation▪ Mingo v. Mingo – p. 96▪ Presumed revoked if cannot produce original.
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Proof to Probate Will
3. Person to whom letters are to be issued is the named executor.▪ PC § 88(c)▪ EC § 301.152
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Proof for Letters of Administration
A necessity exists for an administration▪ PC § 88(d)▪ EC § 301.153
Existence of two or more debts so need to determine priority
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Proof for Letters of Administration
A necessity exists for an administration▪ PC § 88(d)▪ EC § 301.153
Existence of two or more debts so need to determine priority
Partition of estate needed as more than one heir
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Proof for Letters of Administration
A necessity exists for an administration▪ PC § 88(d)▪ EC § 301.153
Existence of two or more debts so need to determine priority
Partition of estate needed as more than one heir
Administration needed to recover estate property
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Proof for Letters of Administration
If no necessity exists for an administration, those holding estate property may directly pay heirs. ▪ PC § 180▪ EC § 301.153(c)