Nonresident Executor Subject to Texas Jurisdiction

Many courts shifted to online zoom hearings when the COVID virus situation started. This includes probate courts in Texas.

This makes sense. Many probate hearings require witnesses. The witnesses are usually friends and acquaintances of the deceased. As with the deceased, generally, they are usually older. They may be more susceptible to have a strong reaction to the virus.

And most uncontested probate hearings only take a few minutes. Driving to the courthouse downtown and finding parking usually takes longer than the hearing.

While online zoom hearings are convenient, would-be executors may feel that they do not have to follow Texas law if they do not actually come into the state. This isn’t necessarily the case. The Estate of Davis, 216 S.W.3d 537 (Tex. App.–Texarkana 2007), case provides an opportunity to consider this issue.

Facts & Procedural History

This case involved a dispute between co-executors and what should have been an uncontested probate administration. Two of the co-executors sued the other co-executor for alleged failures to make distributions, overpaying attorneys fees, etc.

The defendant argued that the probate court did not have jurisdiction over him and he moved to have the case removed to the U.S. District Court in Georgia. The case was then transferred to the U.S. District Court in Texas and remanded to the Texas probate court.

The defendant filed a special appearance, which the probate court asking the court to stay the hearing. The special appearance is a way to basically dip your toe into the state without fully coming into the state and thereby consenting to the court’s jurisdiction, so you can argue that the court does not have jurisdiction over you.

The probate court denied the special appearance. This case was an appeal of the probate court’s ruling.

About Personal Jurisdiction

The term “personal jurisdiction” refers to the court’s ability to exercise control over an individual. It refers to the right for the court to decide a matter for a person. It is a legal concept that usually comes up when there is one or more parties who have few, if any, contacts with the state. There are quite a few rules for when and how a state court can exercise personal jurisdiction.

Texas law provides for two types of personal jurisdiction, namely, specific jurisdiction and general jurisdiction.

General jurisdiction looks to minimum contacts with the state. It asks the question as to whether a nonresident defendant purposely avail itself to conducting activities within the forum state to invoke the protection of that state’s laws. If so, the nonresident is basically treated as a resident. Suit can be maintained in Texas regardless of where the conduct that was the subject of the suit was carried out.

Compare that to specific jurisdiction. This type of jurisdiction is easier to establish. It applies when the conduct that was the subject of the suit was carried out in Texas.

Serving as Executor & Specific Jurisdiction

This brings us back to the question at issue in this case. Did the co-executor trigger specific jurisdiction by asking to be appointed as the executor in the Texas probate court?

The co-executor was not a Texas resident. He also appointed a resident agent in Texas, which is required for out of state executors.

The appeals court noted that the co-executor:

  • Applied for probate of the will.
  • Qualified as an independent executor.
  • Filed the required appraisement and list of claims.
  • Collected and distributed Texas bank account funds.
  • Relocated the Texas funds to Georgia banks.
  • Distributed some portions of the funds to some of the beneficiaries.

Given these factors, the Texas appeals court concluded that the co-executor was subject to specific jurisdiction in Texas. This allowed the Texas courts to consider whether he violated his fiduciary duty as the executor of the estate.

Takeaway

This case shows that you do not have to actually enter the state to trigger personal jurisdiction in Texas. This is true even if you qualify as the executor by attending an online zoom hearing. By making the required court filings, dealing with Texas property, etc., the courts will likely find that you are subject to their jurisdiction. You should factor this into your decision as to whether to serve as a personal representative for an estate in Texas.  This should also factor into the estate planning process and the decision to name nonresident as an executor in a Texas will.