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San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law


San Antonio Express-News
April 1, 2008

Venue for Probate

copyright 2008, Paul Premack

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Dear Mr. Premack: My father lived for many years in San Antonio, and he had a lake property in Llano County. For the last few years, he lived at the lake most of the time. He had a major disagreement with my two sisters, and when he made his Will last year he wrote them out of it. I mostly get along with them, but don’t want to rub it in their faces that he left everything to me. Since they live in San Antonio, can I probate his Will in Llano so it is less likely they will find out about it? – E.K.

Your father had the legal right to leave his various assets to whomever he selected, and to omit anyone. So long as the choice he made in his Will – to leave everything to you – reflected his true desire, was not unduly influenced, and was made at a time when he had proper capacity, then his Will should be deemed valid.

Hiding the process from your sisters does not mean that they will never know the choice your father made. Even if they don’t know where the Will was probated, they will likely wonder what happened to your father’s two homes and to the rest of his assets. If they start to investigate, they will eventually find out the choice your father made regardless of which county probates the Will.

Your real question may be about timing. Under Texas law, any challenge to the validity of a Will becomes more difficult after the Will is admitted to probate. Perhaps the choice of county could delay the time when your sisters find out about the Will, thus making it more difficult for them to mount a successful contest. Still, you cannot hide the process by choosing the county randomly.

According to the Texas Probate Code, the Will should be offered for probate in the county where your father "resided, if he had a domicile or fixed place of residence in this State". Clearly he had a domicile or a fixed place of residence in Texas, so the question is: how do you legally choose between Bexar County or Llano County?

How do the courts decide which county is the proper venue for a probate? In the case Estate of Steed (decided in 2004) the decedent, Mr. Steed, had land and homes in several Texas counties. He lived and worked for many years in Ochiltree County, owned a ranch and home in Morris County, and had other ranch land in west Texas.

When Mr. Steed died, his wife offered a will he wrote in 1998 for probate in Morris County and his children offered a Will he wrote in 2001 for probate in Ochiltree County. The trial courts decided Morris County should have venue to decide which Will was entitled to probate. The sons appealed.

The appeals court discussed the distinction between the words "residence" and "domicile". Other Texas courts had held that a person may have many residences, but can only have a single domicile. Domicile is established when there is 1) an actual residence, and 2) the intent to make it a "fixed and permanent home to which, whenever he is absent, he has the intention of returning". In the Steed case, the court decided that venue lies in the county of domicile.

How does that apply to your father? He owned a residence in Bexar County and a residence in Llano County. He spent most of his time residing at the lake for the last few years. Venue would be proper in the county which he considered to be his permanent home. If you file the Will in either Bexar or Llano County, it is likely the court would accept the assertion that venue is proper. Venue selection would become an issue only if your sisters challenge your choice of court; then, evidence of your father’s intent will be the determining factor for which court is proper.

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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.



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