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What’s the Proper Probate Venue When Co-Defendants Live in Different Texas Counties?

Legal Terminology

Pleas of Privilege

Raises an objection to the venue of an action.

Article 1995, Revised Civil Statutes (Code):

Subdivision 4:

States that there must be a resident defendant for a bona fide cause of action, and a non-resident defendant must either be a necessary or a proper party.

Subdivision 29a:

States that the venue of an action is determined by reason of the nature or the character of the action.

The Probate Case

Kelly v. Lobit, 142 S.W.2d 301 (Tex. Civ. App. – Galveston 1940, no writ.)

Facts & Procedural History: The Will

Joseph Lobit, Sr. (Decedent), passed away in 1912. Decedent’s will named Louis and Paul Lobit (Appellees) as the independent executors without bond. The will was admitted to probate in Galveston County Court, and Appellees were accepted as independent executors. After a three-year period of administering the estate’s affairs (during which they did not file an inventory, appraisement, or list of claims), Appellees filed their resignation as independent executors in the County Court. However, both Appellees continued to partake in certain estate matters under the power of attorney allocated to them by their different siblings.

Myrtle Lobit Kelly initiated a suit in Harris County District Court to compel an accounting and to recover judgment for funds Appellants might be owed. The record showed there were several tracts of land in Texas that had not been bequeathed to the will’s beneficiaries. Mrs. Kelly passed away not long afterwards, and her husband, Donald S. Kelly (Appellant, on behalf of Mrs. Kelly), served as her substitute as plaintiff. Appellant also served as Mrs. Kelly’s administrator for her estate and the guardian of the estate of Joseph Lobit (a minor). It had been previously established that Louis Lobit was a Harris County resident, and that Paul Lobit was a Galveston County resident. Appellees then filed pleas of privilege requesting that the suit be transferred to Galveston County. The District Court sustained the pleas of Appellees, and ordered that the matter be transferred.

Appellant appealed the order, and the Court of Civil Appeals reversed the judgment of the District Court and remanded the case back to the trial court. The Court of Civil Appeals also instructed the trial court to retain the Harris County venue. The Court stated that the venue of this action had been properly laid in Harris County because: (1) Louis Lobit was able to be sued in Harris County; and (2) as a proper and necessary co-party to the action, Paul Lobit could be sued there as well.

Main Considerations: Court jurisdiction

What made Paul Lobit a proper and necessary party to the action (meaning the venue could be kept in Harris County) despite his residency in Galveston County?

Paul was a proper and necessary party because both he and Louis were jointly and severally required by the will to conduct business for the estate (file an inventory and a list of claims). The beneficiaries had a right to require them to provide an accounting of their administration of the estate. In addition, both Paul and Louis could legally act without the presence of the other in estate matters (except in the sale of land), and their actions were binding on the other.

The Takeaway

Kelly v. Lobit shows that, in cases where co-defendants maintain residences in different locations, the residence of one can be used as the venue for a probate matter if the non-resident defendant is a proper and necessary party.

Do you need an Experience Probate Attorney to help with a Probate Litigation Matter?

When a loved one dies, the last thing you want to deal with is probate litigation. But if the deceased has assets in different Texas counties, you may have no choice. The good news is that an experienced probate attorney can help you navigate the process and protect your interests.

Probate litigation can be complex, and it’s important to have an attorney who knows the ins and outs of the law. If you’re dealing with a probate matter, make sure to find an attorney with experience in handling these types of cases.

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Related Questions

What counties in Texas have statutory probate courts?

Statutory Probate Courts are courts in large Texas metro areas and have jurisdiction over probate matters, guardianship cases, and mental health issues. There are many statutory probate courts in Texas. The most well-known are in Harris, Travis, and Bexar counties. However, there are also probate courts in Collin, Denton, El Paso, Fort Bend, Galveston, Jefferson, Montgomery, Nueces, and Williamson counties.

What court is the proper venue for probate proceedings in the state of Florida?

Venue for Probate: The Florida Probate Code provides that when a decedent dies owning property in multiple counties within the state, the court with venue over the county in which the decedent resided at the time of death has primary jurisdiction over the probate proceedings. If, however, the decedent was not a Florida resident at the time of death, then the court with venue over the county in which the decedent owned real property at the time of death has primary jurisdiction.

What is a citation in probate court?

A citation in probate court is a notice to the named parties that they are required to appear in court on a certain date and time. The citation may be served by the sheriff, constable, or another process server.

Who is an interested person in probate?

In Texas, an interested person in probate is defined as a person who: 1) Is a heir of the decedent; 2) Is a devisee under the decedent’s will; 3) Is or may be entitled to any portion of the estate pursuant to a family allowance; 4) Is a creditor of the decedent; or 5) Has filed a contest to the will. If you fit into any of the above categories, then you are considered an interested person in probate and would have standing to file a probate proceeding in Texas.

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