Texas Probate Code Ann., Rule 31 [now Texas Estates Code]:
Any person interested may, by a bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment. Persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to apply for a bill of review.
Walker v. Sharpe, 807 S.W.2d 448 (Tex. App. — Corpus Christi 1991, writ denied)
Facts and Procedural History: Probating a Will
When Ward Walker passed away, his wife, Mary Ellen Walker, was appointed and served as independent executrix of his estate. She was not named as such in his will. She then contracted to sell their marital homestead to an attorney they frequently used in the past, Sharpe. The sale was agreed to and properly transferred.
Sharpe later discovered that Walker was not named independent executrix in the will and reached out to Joel Ellis, Walker’s probate attorney, for help. Sharpe filed a Motion to Confirm Sale of Real Property or to Cancel Sale and for Reimbursement with the judge in probate court. The judge confirmed the sale and its terms and conditions.
Later, Walker and Sharpe filled a separate action concerning terms of the sale. Walker claims she had no notice of the Order Confirming Sale until Sharpe brought this action. Walker then filed a Motion to Set Aside Order Confirming Sale and for Bill of Review. She claimed her due process right to notice of the motion and hearing were violated and that the probate court could not enter such order without a report of sale and citation and notice. The probate court denied and awarded Sharpe $12,000 in attorney’s fees.
Walker appealed the judgement on the statutory bill of review. The governing rule, Texas Probate Code, Rule 31 [now Texas Estates Code], provides that the probate court cannot issue an order of confirmation without a prior order of sale. Reversed and Rendered.
Main Consideration for the Court
Does the Bill of Review Rule have to be followed perfectly?
No. The rule gives leeway for irregularities. However, this case did not present an irregularity. It was a blatant disregard for the law.
Takeaways: Application to will cases
Walker v. Sharpe shows that the rule for a bill of review does not have to be followed perfectly in probate administration, but the integral parts must be followed.
Do you need to hire an Experienced Probate Attorney?
When it comes to filing a probate bill of review in Texas, it is important to follow the rules to the letter. Hiring an experienced probate attorney can help ensure that your paperwork is in order and filed correctly. Call us for a FREE attorney consultation. (281) 219-9090.
Related Will questions
How long do I have to file a bill of review for a will in Texas? Filing Requirements
If you’re challenging a probate court ruling in Texas, you must file a bill of review within four years of the original ruling. This time frame is set by Texas law and cannot be extended. If you miss the deadline, you will lose your right to challenge the ruling. Each situation is different so it’s best to consult an attorney.
What is a Texas bill of review?
A Texas bill of review is a legal document that can be filed in order to challenge a previous ruling in a probate case. In order to file a bill of review, there are certain rules that must be followed. These rules include the filing of a notice of hearing, service of process, and the filing of an affidavit. If you have questions, consult an attorney.
How to probate a will in Texas?
There is no one-size-fits-all answer to this question, as the process of probating a will in Texas can vary depending on the specific circumstances involved. However, there are some general steps that should be followed in most cases.
The first step is to file a petition for probate with the court. This petition must be filed in the county where the deceased person resided at the time of their death. Once the petition is filed, the court will appoint an executor or administrator to oversee the probate process.
The next step is to notify all interested parties of the death and the pending probate proceedings. This includes family members, creditors, and anyone else who may have a claim against the estate. Once all interested parties have been notified, the executor will begin gathering assets and paying debts.
The final step is to distribute the remaining assets to the beneficiaries named in the will. This can be a complex process, so it is important to work with an experienced attorney to ensure that everything is done according to Texas law.
How long does probate of a will take in Texas?
Probate can be a lengthy process, depending on the complexity of the estate. In Texas, the average probate takes around nine to twelve months. However, some probates can take years to complete. If you are concerned about the length of time your probate will take, you may want to consult with an experienced probate attorney.
What happens if you don’t probate a will in Texas?
If you don’t probate a will in Texas, the court may appoint an administrator to manage the estate. Under Texas law, the administrator will be responsible for distributing the assets of the estate according to the law as if the will never existed. An experienced attorney can help you understand your options.