If you are involved in a lawsuit, you need to know how to properly serve the lawsuit papers on the person you are suing. There are nuanced rules for how and when this can be done.
The probate rules add a layer of complexity as the Texas Estates Code includes various rules for serving citations or notices in probate cases.
The consequence of failing to follow these rules can be significant delays and, in some cases, dismissal of claims. If the case is decided by the court, it can even lead to the probate court decision being reversed.
What is Citation and Notice?
In a legal context, a citation is a document that is issued by a court to notify a person of a legal proceeding against them. The citation will typically state the nature of the proceeding, the date and time of the hearing, and the name and address of the court.
A notice is a document that is issued by a party to a lawsuit to inform a person of their rights or responsibilities. The notice may be required by law or may be issued as a courtesy.
Citations and notices are important because they ensure that people are aware of legal proceedings against them and that they have an opportunity to defend themselves or their rights.
Service of Citation & Notice for the Probate Application
The Texas Estates Code sets out rules for notifying interested parties of the filing of a probate application. These rules are grouped by whether the application was filed timely or not.
Citation for Timely Applications
An application for probate of a will has to be made within four years of the date of the decedent’s death to be timely. For these timely applications, the citation rules differ based on whether the applicant can produce the original will or just a copy of the will.
If the original will can be produced, the county clerk is to issue citation to the interested parties. The citation has to include:
- Notification that the application has been filed.
- The nature of the application. The name of the testator (the person who made the will).
- The name of the applicant (the person seeking the probate of the will).
- The specific time when the court will act on the application.
- An invitation for any person interested in the estate to appear at the specified time mentioned in the citation to contest the application.
If only a copy of the will can be produced, the citation also has to include:
- The name of the court that will act on the application.
- The time and place of the court’s action on the application.
Importantly, if the will can be produced, the citation only has to go out to the parties named in the will.
If only a copy can be produced, the citation also has to go out to all of the decedent’s heirs. This has to be done by personal service if the heirs are Texas residents and their addresses are known. It can be made by publication for others.
Notice for Untimely Applications
Rather than a citation issued by the clerk, when the application is untimely, the applicant has to serve a notice on the decedent’s heirs. The notice has to say that the testator’s property will pass to their heirs if the will is not admitted to probate.
This personal service has to be made before the will is admitted to probate, unless the heir files a waiver of notice with the court.
Substituted Service
The rules above require personal service. This is made by hiring a process server who hand-delivers the citation or notice to the party. The process server then files the return or signed copy with the probate clerk to show that service has been made.
If an attempt to make personal service is unsuccessful, the Texas Estates Code says that service may be made in the manner provided by Rule 109 or 109a of the Texas Rules of Civil Procedure. These rules allow for service by publication or other substituted service, such as service by mail.
Rule 109 of the Texas Rules of Civil Procedure allows for service by publication if the person to be served cannot be found after diligent search and inquiry. Publication must be made in a newspaper of general circulation in the county where the action is pending. The notice must be published once a week for four consecutive weeks.
Rule 109a of the Texas Rules of Civil Procedure allows for service by other substituted service if the person to be served cannot be found after diligent search and inquiry. Other substituted service may include service by mail, by leaving a copy of the citation with a person of suitable age and discretion at the person’s usual place of abode, or by any other method that is reasonably calculated to give the person actual notice of the proceeding.
Hire a Lawyer to Probate a Will
Hire an Experienced Probate Attorney in Houston. Do you need help with a probate matter in the Houston-metro area or the surrounding Texas communities? We are experienced probate lawyers who represent clients with sensitive probate matters. If so, please give us a call at (281) 219-9090.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with disputes involving fraud and power of attorney forms. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
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