Hearing on Application

When?

First Monday after at least 10 days from the date the citation was served. PC § 33(g) EC § 51.104

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)

General Proof

1. Person is dead Death certificate Circumstantial evidence ▪ PC § 72▪ EC Chapter 454

General Proof

2. 4 years have not elapsed between: Date of death Date of application

General Proof

3. Court has jurisdiction and venue.

General Proof

4. Proper citation.

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

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.

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

General Proof

5. Personal representative is not disqualified under PC § 78; EC § 304.003: In re Estate of Robinson – p. 83

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.

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

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.

Proof to Probate Will

1. Requirements of Valid Will – Holographic – How?▪ PC § 84(c)▪ EC § 256.154

Two witnesses to testator’s handwriting.

Proof to Probate Will

1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154

1. Same testimony as for produced will.

Proof to Probate Will

1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154

2. Cause of non-production.

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.

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.

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).

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

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.

Proof to Probate Will

3. Person to whom letters are to be issued is the named executor.▪ PC § 88(c)▪ EC § 301.152

Proof for Letters of AdministrationA necessity exists for an

administration▪ PC § 88(d)▪ EC § 301.153

Existence of two or more debts so need to determine priority

Proof for Letters of AdministrationA 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

Proof for Letters of AdministrationA 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

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)