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Hearing on Application

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)

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Hearing on Application

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  1. Hearing on Application

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

  3. 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)

  4. General Proof • 1. Person is dead • Death certificate • Circumstantial evidence • PC § 72 • EC Chapter 454

  5. General Proof • 2. 4 years have not elapsed between: • Date of death • Date of application

  6. General Proof • 3. Court has jurisdiction and venue.

  7. General Proof • 4. Proper citation.

  8. 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

  9. 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.

  10. 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

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

  12. 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.

  13. 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

  14. 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.

  15. Proof to Probate Will • 1. Requirements of Valid Will – Holographic – How? • PC § 84(c) • EC § 256.154 • Two witnesses to testator’s handwriting.

  16. Proof to Probate Will • 1. Requirements of Valid Will – Lost Will – How? • PC § 85 • EC § 256.154 • 1. Same testimony as for produced will.

  17. Proof to Probate Will • 1. Requirements of Valid Will – Lost Will – How? • PC § 85 • EC § 256.154 • 2. Cause of non-production.

  18. 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.

  19. 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.

  20. 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).

  21. 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

  22. 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.

  23. Proof to Probate Will • 3. Person to whom letters are to be issued is the named executor. • PC § 88(c) • EC § 301.152

  24. 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

  25. 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

  26. 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

  27. 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)

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