Say mom dies. She was a resident of Harris County, had a second house in Liberty County, and was temporarily living in a nursing home in Fort Bend County. When she dies, in what county do you file the probate application?
The quick answer is you file the application in the county in which the decedent resided. But this may not always be the case. The law provides more options than this. The case In re Estate of Griffith, No. 05-19-01144-CV (Tex. App.–Dallas [5th Dist.] 2020) provides an opportunity to consider these rules.
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. The 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 location or jurisdiction where a case is heard. It pertains to the geographic area in which a court with jurisdiction can hear and determine a case.
The venue question here was whether the court in Wichita Falls, Texas or Dallas, Texas was proper.
There are specific rules involved, but venue is typically appropriate for civil litigation where the parties live, where the events in question occurred, or where the property involved is located. The Texas probate rules are slightly more nuanced than this.
Before getting into that, we need to consider the statutes. The Texas probate statutes 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 Texas 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 generally refers to 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 now-outdated Texas Probate Code (the Texas Probate Code was replaced by the Texas Estates Code in 2017). So here is the question. Is the rule in Section 33.001 a mandatory or a permissive statutory provision? That was the question in this court case.
The nephew and niece thought it was mandatory. If it is mandatory, they are correct that the probate application had to be filed in Wichita Falls, Texas where the decedent lived when he died.
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 confound Houston probate attorneys, namely, when is an order appealable (the courts have found that a guardianship application is not immediately appealable either).
The probate court and appeals court concluded that the order was not immediately appealable. Thus, the courts 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 the venue at that point.
The Takeaway
As this case demonstrates, you may have more choices for venue for a probate case than you would think. If you find yourself in a situation like the one in this case, the general rule may be to simply file first. That puts the burden on the other party to contest the venue after you have the will admitted to probate. This first-mover advantage may help decide the case in your favor.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with probate administrations in Texas. 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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