About Selecting the Probate Court

There are times when you want to have a local judge or court decide a case.

This can help if the court is familiar with the local circumstances or the parties. It can also help if there is a similar fact pattern that one knows the judge or court has considered previously or if the case is appealable to a different appellate court.

One court may also just be more convenient for one of the parties to administer the probate.

The Fernandez v. Bustamante, 305 S.W.3d 333 (Tex. App.–Houston [14th Dist.] 2010) explains the rules to consider if you want your probate case heard in by a specific court.

Facts & Procedural History

This case involves probate litigation between a mother and her deceased son’s ex-wife.

The mother requested a temporary administration in Bexar County in 2007. The temporary administration was granted, but the mother never paid the required bond.

The ex-wife filed for probate in Harris County in 2008. The application was filed by her on behalf of her minor child, who was the decedent’s only child.

The ex-wife’s application was granted in early 2008. The wife then filed a motion to transfer venue in Bexar County to have the case transferred to Harris County. There was evidence presented that the decedent either lived in Harris County or Mexico and that his property was in Harris County and Mexico.

The Bexar County Probate Court opted to transfer the case to Harris County. This transfer was the subject of the appeal. The appeals court was asked to decide whether the probate was proper in Bexar County or Harris County.

Venue for Probate Cases

This case was decided under the old Texas Probate Code rules. These rules are substantially similar to those found in the new Texas Estates Code.

The venue rules are found in Texas Estates Code 33.051 says that venue is established by filing an application for probate.

Section 33.052 says that where there are two probate cases filed for the same matter in different courts, the court in which the case was first filed retains venue until it closes its probate case. Section 33.053 has a similar rule where two probate cases are filed in different counties.

The Case in the Bexar County

That brings us back to this case. The ex-wife who was arguing that the case should be heard in Harris County argued that the Bexar County and Harris County probate matters were not concurrent. The ex-wife reasoned that the Bexar County probate proceeding terminated when the decedent’s mother failed to pay the bond.

The appeals court did not agree. It noted that the Probate Code (now the Estates Code), says that the probate case continues from the application until it is closed by the court. The Bexar County probate court did not close its case. Thus, probate was proper in Bexar County.

The appeals court went on to say that the Bexar County probate court was authorized to transfer the case to Harris County, but that this was within the Bexar County probate court’s discretion.

The Takeaway

This case shows that those who care about what county the probate is handled should file first. The party who files first may be able to have the probate handled in the county of their choice.

Of course, this will force the other parties to contest the probate in the first county. They will have to establish that the court does not have jurisdiction. As evidenced by this case, establishing the absence of jurisdiction is often difficult to do–particularly when the decedent moved around frequently or lived in different cities or countries.

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