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Hearing on Application
When?
First Monday after at least 10 days from the date the citation was served. PC § 33(g) EC § 51.104
General Proof
All applicants must prove these things.
Often in form of affidavit by applicant or applicant’s attorney.
PC § 88(a)
EC § 251.151 (testacy)EC § 301.151 (intestacy)
General Proof
1. Person is dead Death certificate Circumstantial evidence ▪ PC § 72▪ EC Chapter 454
General Proof
2. 4 years have not elapsed between: Date of death Date of application
General Proof
3. Court has jurisdiction and venue.
General Proof
4. Proper citation.
General Proof
4. Personal representative is qualified under PC § 77; EC § 304.001: Person named, if will. Spouse Principal heir or beneficiary Any heir or beneficiary Next of kin Creditor Person of good character Anyone else not disqualified
General Proof
4. Personal representative is qualified under PC § 77; EC § 304.001: If several individuals are equally
entitled (e.g., four children of intestate widow), court may either:▪ Appoint the one person court thinks
most likely to do the best job, or▪ Appoint jointly.
General Proof
5. Personal representative is not disqualified under PC § 78; EC § 304.003: Minor Incompetent Convicted felon Non-Texas resident without resident
agent Unauthorized corporation Not deemed unsuitable by court
General Proof
5. Personal representative is not disqualified under PC § 78; EC § 304.003: In re Estate of Robinson – p. 83
Proof to Probate Will
1. Requirements of Valid Will▪ PC § 84(a)▪ EC § 256.152
If will self-proved, no additional proof needed of formality compliance.
Proof to Probate Will
1. Requirements of Valid Will – What?▪ PC § 84(a)▪ EC § 256.152
If will not self-proved, need proof that:▪ Testator had legal capacity at time of
will execution▪ Testator had testamentary capacity at
time of will execution▪ The will complies with all formalities
Proof to Probate Will
1. Requirements of Valid Will – Attested – How?▪ PC § 84(b)▪ EC § 256.153
Sworn testimony or affidavit of one or more of the attesting witnesses.
Special procedures if witnesses unable to attend or are dead.
Proof to Probate Will
1. Requirements of Valid Will – Holographic – How?▪ PC § 84(c)▪ EC § 256.154
Two witnesses to testator’s handwriting.
Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
1. Same testimony as for produced will.
Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
2. Cause of non-production.
Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
3. Cause satisfies court that original cannot be found by reasonable diligence.
Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
4. Contents substantially proved by testimony of a credible witness who:▪ Read the will,▪ Heard the will read, or▪ Can identify a copy.
Proof to Probate Will
1. Requirements of Valid Will – Lost Will – How?▪ PC § 85▪ EC § 256.154
In re Estate of Catlin, 311 S.W.3d 697 (Tex. App.—Amarillo 2010, pet. denied).
Proof to Probate Will
2. Will has not been revoked.▪ PC § 84(a)▪ EC § 256.152
Presumption of non-revocation▪ Ashley v. Usher – p. 93▪ Source of will “normal”
Person to whom testator delivered it, or Among testator’s valuable papers
▪ No suspicious circumstances
Proof to Probate Will
2. Will has not been revoked.▪ PC § 84(a)▪ EC § 256.152
Presumption of revocation▪ Mingo v. Mingo – p. 96▪ Presumed revoked if cannot produce original.
Proof to Probate Will
3. Person to whom letters are to be issued is the named executor.▪ PC § 88(c)▪ EC § 301.152
Proof for Letters of Administration
A necessity exists for an administration▪ PC § 88(d)▪ EC § 301.153
Existence of two or more debts so need to determine priority
Proof for Letters of Administration
A necessity exists for an administration▪ PC § 88(d)▪ EC § 301.153
Existence of two or more debts so need to determine priority
Partition of estate needed as more than one heir
Proof for Letters of Administration
A necessity exists for an administration▪ PC § 88(d)▪ EC § 301.153
Existence of two or more debts so need to determine priority
Partition of estate needed as more than one heir
Administration needed to recover estate property
Proof for Letters of Administration
If no necessity exists for an administration, those holding estate property may directly pay heirs. ▪ PC § 180▪ EC § 301.153(c)