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San Antonio Express-News
Copyright 2012, Paul Premack
April 23, 2012

Who has legal authority to start a probate?

Dear Mr. Premack: I was notified by an attorney that he was hired by 3 of 5 siblings to probate my mom's Will. If I do not agree with the hiring of this attorney, what are my options? JMC
According to the Texas Probate Code, a Will can be offered for probate by the nominated Executor or by any interested party. Any of your mother’s children would likely qualify as interested parties. But when an interested party hires an attorney to file an application for probate of the Will, they are limited to asking the court for two things: 1) to accept the offered Will as the “last Will” of the decedent, and 2) to empower the nominated Executor to handle the estate’s affairs.
It would be truly unusual for an attorney to accept multiple clients (3 of 5 siblings) in a probate matter. Generally, attorneys like to have one clearly defined client to whom they are responsible. Again, generally in a probate proceeding, that client is the nominated Executor of the estate. Thus, it may be that “3 of 5” siblings concurred in hiring this attorney, but the attorney should have identified only the nominated Executor as the actual “client”.
What can you do? First, if you have legal grounds to do so, you could contest the Will. A contest does not stop that attorney from representing his client, so it does not really achieve your goal. Second, you could agree that the Will is acceptable but that the sibling nominated as Executor should be disqualified. You could hire your own attorney to prove that the nominated Executor does not meet the legal standards for serving in that role. Again, this does not stop that attorney from representing his client and does not really achieve your goal.
When you say you “do not agree with the hiring of this attorney,” what is your exact objection? Have you had negative experiences with that attorney? Do you feel that attorney charges too much? Do you have a friend-attorney you wanted the family to hire for the probate? Your motives for not wanting this attorney may or may not sway your siblings if you speak to them. If you can convince them that you have sound reasons for wanting a different attorney, perhaps they will ask this one to withdraw and substitute other counsel more to your liking. Failing that, the decision really belongs to the person nominated as Executor. You just need to go along for the ride, and let the legal process do its job.
Dear Mr. Premack: My father passed away a couple of years ago without a will. My parents were divorced at the time and he was survived by his second spouse. Is it mandatory for his estate to be probated and who should file? – TF
According to the Texas Probate Code, when a person dies without a Will, the probate administration can be initiated by “any interested party” (sound familiar?). When there is no Will, there is no nominated Executor, so it is logical that the application would be submitted by someone who was interested in becoming Administrator of the estate. The Probate Code sets up a priority list of persons who may serve; top priority goes to the surviving spouse if she desires to serve. If not, next priority goes to next of kin in the order of descent (ie, children first, grandchildren second). If none of them apply, then a creditor seeking payment of a debt may apply to be Administrator. If no creditor applies, then “any person of good character residing in the county” may apply, and failing that, any “other person not disqualified” by law may apply.
Probate of the estate must be opened before the general four-year statute of limitations runs out. Since it has been “a couple of years” since he died, you are likely still within the allowable period. But if he has no remaining assets and no debts, then probate is most likely unnecessary. However, since it has been a couple of years, it is unlikely that you want to probate to clear his debts (they would have forced you to act more promptly), so I assume your father owned some land or other asset which you now seek to have legally distributed. If so, probate is necessary.

Prior Week: Ademption: does sale of mom's house void gift of the house under her Will?
Next Week: What effect does divorce have on Will and POAs?

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.