What county do you file a probate application in for a Texas probate? The general rule is you file the application in the county in which the decedent resided. But this may not always be the case. The In re Estate of Griffith, No. 05-19-01144-CV (Tex. App.–Dallas [5th Dist.]), provides an example.
Facts & Procedural History
The decedent was a resident of Dallas, Texas in 2010 at the time he executed a will. He was then diagnosed with dementia in 2014.
There was a dispute over guardianship, which was settled with a family settlement agreement. This agreement provided that he would be moved to Wichita Falls, Texas to live in a nursing home.
The decedent died in 2019 as a resident of Wichita Falls, Texas.
The beneficiary under the will filed an application to probate the 2010 will in Dallas County.
The niece and nephew, who probably lived in Wichita Falls, Texas, filed an opposition to the application. The opposition noted that there was a 2015 will that revoked the 2010 will and they filed a motion to transfer venue. The motion argued that venue was proper in Wichita Falls, not Dallas.
The probate court denied the motion to transfer venue, which led to this appeal.
About Venue in Texas Probate Cases
The term “venue” refers to the proper court to hear a particular case. The venue question here was whether the court in Wichita Falls, Texas or Dallas, Texas was proper.
The Texas rules generally say that venue is proper in the court specified in a statutory provision. There are two types of statutory provisions, namely, mandatory and permissive.
If there is a mandatory statutory provision, the court identified in that provision dictates venue. If there is a permissive statutory provision, any court identified in that provision can hear the case.
Proper Venue in Texas Probates
This brings us to probate law. The Texas probate rules say that venue for a probate matter is in the county in which the decedent resided. This is found in Section 33.001 of the Texas Estates Code (this article provides a more in depth review of probate court venue).
The courts have concluded that the term “resided” means “domicile” under Texas law. This is generally where the decedent lived and intended to live.
Section 33.001 is a relatively new statutory provision, however. It differs from the prior provision in the Texas Probate Code. Is it a mandatory or a permissive statutory provision?
The nephew and niece thought it was mandatory. If it is, they are correct that the probate application had to be filed in Wichita Falls, Texas.
One would think the nephew and niece were correct. The statute seems clear in this regard. But just a clear statute has little meaning in probate litigation sometimes. What matters is how the probate court rules. The Dallas probate court decided that venue was proper in Dallas, Texas.
On appeal, the appeals court did not answer the question. It concluded that the probate court’s order was not immediately appealable.
Appealing the Probate Court’s Venue
This brings us to another area of uncertainty for Texas probates that can often confounds Houston probate attorneys, namely, when is an order appealable (the courts have found that a guardianship application is not immediately appealable either). Thus, the probate court and appeals court allowed the proceeding to continue.
The result is that the nephew and niece will have to wait for the probate court to admit the will to probate and then contest venue at that point.
Others finding themselves in this situation may have to do the same. They may have to wait to object to venue until the order admitting the will to probate.