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Probate Court Reversed for Insufficient Notice of Hearing

Probate cases are handled by a number of different courts in Texas. This can include statutory probate courts, county courts, and even district courts.

Regardless of the type of court, one thing holds constant: the court is busy. Most courts in Texas have high caseloads. This is true of statutory probate courts in the largest counties (that may have hundreds of probate cases on their dockets) and county courts in rural areas (that may have everything from criminal to family law cases on their dockets).

This results in most courts wanting to resolve as many issues in cases as they can when the parties are before the court. It is not uncommon for the courts to hear related matters–such as motions–ad hoc with little to no notice. There are times when the parties do not object to this. There are also times when one or both parties object, as the rules do not allow for ad hoc hearings.

The recent Estate of Austin, No. 12-22-00013-CV (Tex. App.–Tyler 2023) provides an example of this. It involves an order of the probate court to distribute assets resulting from a hearing for which the court did not provide sufficient advance notice.

Facts & Procedural History

This case involves the dispute over ownership of certificates of deposit (“CDs”) and a dispute between two daughters-in-law of the decedent.

The mother, the decedent, had purchased CDs and named different beneficiaries on the CDs. The son, acting as the mother’s agent, cashed in the CDs and deposited the funds into separate savings accounts.

After the mother’s death, one of the decedent’s daughters-in-law became the executor of her estate. A disagreement arose regarding the ownership of the funds in one of the savings accounts.

A family settlement agreement was reached to distribute some assets and assign funds from one account to the son and one of the daughters-in-law. However, the disputed funds in the other account remained undistributed.

One of the daughters-in-law filed an application seeking to distribute these funds among all the heirs or to herself. The other daughter-in-law objected, arguing that the son did not have the authority to change the beneficiary of the funds.

A hearing was scheduled, but one of the daughters-in-law claimed she did not receive proper notice and objected to an evidentiary hearing. Despite her objection, the court conducted the hearing and ruled in favor of the other daughter-in-law, distributing the funds among all the heirs.

The daughter-in-law appealed, arguing that the court violated her due process rights by conducting the hearing without proper notice.

The Communications From the Court

On November 4, the court administrator sent an email to the parties, reminding them of an in-person hearing scheduled for November 12 at 1:00 p.m. The daughter-in-law.’s counsel then emailed the court administrator and other parties on November 10, seeking clarification about the nature of the hearing.

The court administrator responded to all parties, stating that the November 12 hearing would be a “status hearing on what are the next steps for this matter” and emphasized that it was not a trial.

On the morning of the November 12 hearing, the daughter-in-law filed a written objection, objecting to anything beyond a status hearing taking place that day. The objection highlighted that the only request was for a hearing without specifying the motions or applications to be heard, the lack of proper notice violating Texas Rule of Civil Procedure 21(b), and the potential for a trial by ambush without adequate notice of the hearing’s subject matter.

Despite the objection, the trial court announced its intention to allow testimony beyond a status hearing. The trial court proceeded with an extensive evidentiary hearing regarding the ownership of the disputed funds. Five witnesses provided testimony during the hearing, and the trial court took the matter under advisement at the hearing’s conclusion.

Three Day Notice Under TRCP 21(b)

The Texas Rules of Civil Procedure is a set of rules that govern civil proceedings in the state of Texas. They provide guidelines and procedures to be followed in civil litigation, including rules for initiating a lawsuit, conducting discovery, presenting evidence, and rendering judgments.

These rules are designed to ensure fair and efficient resolution of civil disputes. The Texas Rules of Civil Procedure are continuously updated and maintained by the Texas Supreme Court. The rules cover various aspects of civil litigation, including pleadings, motions, discovery, trials, appeals, and enforcement of judgments. They serve as the framework for civil litigation in Texas courts and are followed by attorneys, judges, and parties involved in civil cases.

Texas Rule of Civil Procedure 21(b) states that an application to the court for an order and notice of any hearing on that application must be served on all other parties at least three days before the specified court proceeding, unless otherwise provided by the rules or shortened by the court. This rule ensures that parties have sufficient notice of upcoming hearings or proceedings to enable them to prepare and present their objections or arguments effectively.

The requirement of three-day notice means that parties should be given a minimum of three days’ advance notice of the hearing, providing them with a reasonable opportunity to be aware of the hearing’s nature, prepare their case, and participate effectively. It allows the parties sufficient time to review the application, gather evidence, and formulate their responses or objections.

The Due Process Right to Notice

A trial court’s decision to conduct a hearing without proper notice can be considered an abuse of discretion. The Fourteenth Amendment of the United States Constitution and the Texas Constitution guarantee due process, which includes providing notice reasonably calculated to inform the parties of the proceedings and an opportunity to be heard.

Notice must be given with enough time for interested parties to make an appearance and must reasonably convey the required information.

Texas Rule of Civil Procedure 21(b) states that an application to the court and notice of any hearing must be served on all parties at least three days before the specified court proceeding, unless otherwise provided. The notice must reference the application or motion that will be the subject of the hearing.

The appellate court agreed that the trial court violated the daughter-in-law’s due process rights by conducting the evidentiary hearing on the application without proper notice. This deprived her of the opportunity to prepare and present her objections effectively. Therefore, the appellate court reversed the decision and sent the case back to the trial court.

The Takeaway

Proper notice of a court hearing is essential to uphold due process rights. Parties must receive reasonable notice of upcoming hearings or proceedings to have an opportunity to prepare and present their objections effectively. Texas Rule of Civil Procedure 21(b) requires a minimum three-day notice before a court proceeding, unless otherwise provided. Violating this notice requirement can be considered an abuse of discretion by the trial court and can result in the court order being overturned, as this case shows.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with probate court hearings. 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.


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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