PROBATE PROCEDURES AND ALTERNATIVES

HONORABLE STEVE M. KING Tarrant County Probate Court One

Fort Worth, Texas Tel: 884-2028 Fax: 884-3178

State Bar of Texas 11th ANNUAL BUILDING BLOCKS OF WILLS,

ESTATES AND PROBATE COURSE January 15, 2010

Via Webcast

CHAPTER 4.2

Probate Procedures and Alternatives Chapter 4.2

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TABLE OF CONTENTS

A. PRACTICE TIPS ............................................................................................................................................... 1

B. EMERGENCY INTERVENTION/ DISPOSITION OF REMAINS ................................................................. 6

C. NOTICE AFTER PROBATE OF WILL UNDER 128A Notice to Beneficiary Named in Decedents Will.............................................................................................. 8 Waiver of Notice of Admission of Will ............................................................................................................. 9 Personal Representatives Affidavit of Notice................................................................................................. 10 Attorneys Certificate of Notice....................................................................................................................... 11 Notice to Beneficiary Named in Decedents Will............................................................................................ 12

D. COURT INSTRUCTIONS: INDEPENDENT EXECUTOR/INDEPENDENT ADMINISTRATOR ............ 13

E. ALTERNATIVES TO PROBATE .................................................................................................................. 15

F. ACCESS TO SAFE DEPOSIT BOX WITH & WITHOUT COURT ORDER ................................................ 18

G. THE INVENTORY, APPRAISEMENT & LIST OF CLAIMS....................................................................... 19 Inventory .......................................................................................................................................................... 22 Order ............................................................................................................................................................ 24

H. MOTION TO DELIVER WILL....................................................................................................................... 25 Order to Show Cause ....................................................................................................................................... 26

I. SHOW CAUSE & REMOVAL OF PERSONAL REPRESENTATIVE ......................................................... 27 Grounds for Removal....................................................................................................................................... 30

J. DIVISION OF PROPERTY UPON INTESTACY .......................................................................................... 31

K. TEXAS PROBATE CODE THUMB-TAB INDEX (2010) ............................................................................. 32

Probate Procedures and Alternatives Chapter 4.2

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PROBATE PROCEDURE AND ALTERNATIVES

WHAT EVERY PRACTITIONER SHOULD

KNOW ABOUT PROBATE. OR

WHAT WAS IT THE JUDGE SAID THAT DAY ABOUT.?

It's Monday and you have a Probate case. You've managed to get to the courthouse and locate your clients. So far, so good. You've had time to go over their testimony for your prove-up and answer their preliminary questions. You've checked in with the bailiff and seen that you're about three cases down, so you settle in to one of the benchs in the back of the courtroom and try to keep your clients from talking out loud and getting a dirty look from the bailiff. Here are some things to think about while you are waiting for your case to be called, A. General Observations: Death is not the End. There remains the litigation over the estate. Ambrose Bierce

1. If you have never done so, go watch the uncontested hearing docket to get an idea of the flow.

2. Assume I have read your pleadings. 3. The Court would usually rather be relieved

than surprised. If you have an unusual fact situation (or the situation is not what it appears), find some way to plead it. Please don't make the court guess at what is going on and have to delay your hearing until we find out.

4. It is not always better to get forgiveness than permission ask first.

5. Check in with the bailiff - not with the court coordinator.

6. Call if you're not coming. Have your clients wait in the hallway

7. Buy and use a current Probate Code! The Legislature meets every two years and repeals everything you knew.

B. Paperwork: We can lick gravity, but sometimes the paperwork is overwhelming. Wernher von Braun

1. Paperwork to Have on Hand - If you will be putting on testimony during the hearing, bring a completed Proof of Facts, Appropriate Oath (to be executed after the testimony is given in open court), appropriate Bond and proposed Order. Make sure you track the findings

required by the appropriate Code Sections. See #2.

2. Prepared Testimony: Unless a record is being made by a court reporter, always have your testimony reduced to writing, in all cases, for all witnesses, every time.

3. Fill in all the blanks you can, especially the date (or at least provide a date line long enough). If the court has already had to carve up your order with corrections and interlineations, it takes all that much longer to fill in the case number, the court designation, the date of the hearing, the date the application was filed and the date signed. We go through about 140 orders and copies on a Monday.

4. Proofread!! - Did you remember to change the names and dates from the last time the computer prepared that form? Do they match between the Will, your Application, the Proof and the Order?

5. Social Security Numbers - Please provide the court clerk the Social Security Numbers for the Decedent and Applicant (on a separate sheet for the courts records).

6. Appointment of Resident Agent - If your Applicant is not a Texas resident and has not appointed a resident agent for service, they are disqualified by law until such an agent is designated. Bring your completed form with you to the hearing. (see 10 below)

7. Absence of witnesses? Consider depositions by written questions (hint: Its TPC 22 & 84, not TRCP 208).

8. If you are filing something within three days of the hearing, bring a courtesy copy to the court.

9. Conformed copies: at the bench or down the hall? Find out how your judge prefers to handle it. Hand the judge your copies when you start, not at the end of the prove-up.

10. Documents that are ready to be filed (e.g. notarized waivers, designations of resident agent) need to be filed with the clerk prior to the hearing and a file-marked copy brought to the hearing. The risk of losing an executed but unfiled and unscanned document is then avoided.

11. Correspondence on the case should be sent to other counsel, ad litems and pro se parties (but not the court).

C. Decorum:The true test of character is not how much we know how to do, but how we behave when we don't know what to do.

1. No tobacco/ No gum/ No shorts/ No hats/ No cell phones/ No pagers/ No client conferences

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in the courtroom/ No talking in the courtroom (unless you are addressing the court or examining a witness).

2. Although you are standing at the bench rather than standing to address the court from the counsel table this is still a formal proceeding and your conduct should reflect such.

3. While this is a public building, it is a court of law, not the bus station.

4. Most courts have written notices posted with regard to the rules of decorum for the court. As a result, you and your clients/witnesses may or may not be given a warning of infractions before the court either asks you to leave or holds someone in contempt.

5. If the court has a dress code, observe it. Advise your clients accordingly or re-schedule your hearing.

6. A telephone going off in the courtroom is usually followed by impoundment of the telephone or an immediate finding of contempt.

7. Talking in the courtroom is not only disrespectful, it is disruptive to the judge trying to hear a witness who is too scared to speak up. If you need to talk to a witness, do so outside. Let the bailiff know you need to speak to a witness and to let you know when the court is ready.

8. Talking in the foyer immediately outside the courtroom is no improvement. If you think you have gotten out of earshot, think again. Take it out into the hallway.

9. Dont use the courts offices as a conference room or for your telephone calls. The court staff have work to get done, too.

10. If you have a minor emergency remember: the court reporter usually has pens, paper, a Probate Code, emergency supplies, reading glasses, and a coat and tie available. (The tie may be pretty ugly though.)

D. Prove-ups sworn testimony taken in open

court. TPC 84(b)(1) 1. Prepare your Witnesses: Discuss the testimony

and legal issues outside the presence of the Court and then ask summary quest