In Estate of Whittenburg, and April 13, 2022 opinion, the Texas Appeals Court clarified that an heirship proceeding can proceed in a Texas probate even if the estate is testate (decedent died with a valid will that has been admitted to probate), as long as the administration of the estate has not been closed.
In June of 2015, Wanda Whittenburg filed an application to probate the will of her brother, Joe Whittenburg. In the petition, Wanda represented that Joe (1) domiciled himself in Randall County, Texas, at his death, though he lived in Portales, New Mexico; (2) died unmarried; and (3) named her as his sole heir.
Joe’s will was admitted to probate and letters testamentary were issued to Wanda. Nothing shows that the administration of Joe’s estate was ever closed.
Almost two years later, a woman named Ginger alleged that she and Joe entered a common law marriage in Texas before they moved to New Mexico. Ginger asserted that she was Joe’s true heir and surviving spouse, and claimed that New Mexico law controlled aspects of Joe’s estate, that Ginger held pretermitted spouse status under that law, and that she was entitled to half of the community property of the marital estate under Texas law.
Wanda disputed these allegations and filed both a plea to the Texas trial court’s jurisdiction and moved for summary judgment. The trial court granted both, dismissed Ginger’s heirship proceeding, and denied her remaining claims.
The Texas Probate Court Has Broad Jurisdiction Of All Matters Relating To the Probate Proceeding
Statute provides that the court exercising original probate jurisdiction “also has jurisdiction of all matters related to the probate proceeding.” TEX. EST. CODE ANN. § 32.001(a).
This grant of authority includes “pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.” Id. § 32.001(b).
Also according to statute, “probate proceeding[s]” include both an “heirship” determination, id. at § 31.001(3), and “an application, petition, motion, or action regarding the probate of a will or an estate administration.” Id. § 31.001(4). In turn, “a matter related to a probate proceeding includes” “an action for trial of title to real property that is estate property,” id. § 31.002(a)(5), and an action “for trial of the right of property that is estate property.” Id. § 31.002(a)(6); see also id. § 31.002(b)(1) (stating that in “a county in which . . . there is a county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes: (1) all matters and actions described in Subsection (a)”).
The Texas appeals court stated:
As can be seen, the jurisdictional grant extended to the probate court (or here, the county court at law acting in probate) is quite pervasive. Furthermore, the borders established by the foregoing statutes encompass each claim omitted from Wanda’s plea to the jurisdiction because they involve property of the estate and disputes regarding probate of Joe’s will and the administration of the underlying estate.
Does the Presence Of a Will Preclude a Heirship Proceeding In Texas Probate?
No, the presence of a will does not prevent a heirship proceeding in Texas probate.
A court may conduct a proceeding to declare heirship when:
(1) a person dies intestate owning or entitled to property in this state and there has been no administration in this state of the person’s estate;
(2) there has been a will probated in this state or elsewhere or an administration in this state of a decedent’s estate, but:
(A) property in this state was omitted from the will or administration; or
(B) no final disposition of property in this state has been made in the administration;
Ginger averred in her pleading that Joe’s “[w]ill has been admitted to probate and his Estate has yet to be distributed.” Construing her pleading liberally, the Texas Appeals Court read this statement as averring that no final disposition of the property has been “made in the administration” of his estate.
The Texas Appeals Court also noted that if all that was needed was the existence of a will to defeat a heirship proceeding, then §§ 255.001 et seq. of the Texas Estates Code would be nullified in important respects:
Those sections afford a pretermitted child opportunity to inherit from a parent. See id. § 255.053(a) (stating that “[i]f a testator has no child living when the testator executes the testator’s last will, a pretermitted child succeeds to the portion of the testator’s separate and community estate . . . to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse”); see also id. § 255.051 (defining a pretermitted child as a testator’s child who is born or adopted (1) during the testator’s lifetime or after the testator’s death; and (2) after the execution of the testator’s will). If we were to accept Wanda’s premise that a mere will disposing of all property is enough to thwart application of § 202.002(2)(B), then a later born child could not benefit from § 255.051 et seq. if question arose as to whether he was the decedent’s offspring. He would effectively be denied the opportunity to prove his status as an heir. It is difficult to conclude that the legislature intended § 202.002(2)(B) to be so read or otherwise cause that result, especially when questions of actual lineage have been known to arise.