Dallas Bar Association

Pursuing Claims Involving Estates: A Top 10 List

by Melinda H. Sims

Estate litigation can involve almost any area of the law. As such, many lawyers are faced with cases in which they are familiar with the substantive law, but unfamiliar with probate proceedings. The following is a top 10 list of items to address when pursuing claims involving estates. This list focuses on probate proceedings involving Texas law and courts; however, a particular case might involve the law and courts of multiple jurisdictions, in which case a lawyer must apply those laws and court rules.

1.              Find out whether an estate administration is pending. Whether an estate administration is pending or closed will dictate to whom you must present your claim, or against whom you must file a lawsuit. If no estate administration is open, decide whether one needs to be opened. If the estate representative has breached his or her fiduciary duties or is otherwise an inappropriate representative, consider seeking removal of that individual. If the claim involves out-of-state property, determine whether an ancillary probate proceeding is necessary.

2.              Determine whether the claim is subject to special claims procedures. The Texas Probate Code contains requirements for presenting certain types of claims, including, for example, claims for money and secured claims. Understand which procedures apply to dependent administrations versus independent administrations. The procedures impact the approval or litigation of your claim and the running of statutes of limitations, for example.

3.              Decide who are necessary parties. The Texas Probate Code, Texas Trust Code, and Texas Civil Practice and Remedies Code contain provisions about who are necessary parties, as might other statutes applicable to your claim. Determine whether the doctrine of virtual representation applies. In addition, a court might need to appoint an attorney ad litem and/or guardian ad litem to represent certain individuals. File claims against parties in their proper capacities (as a fiduciary or individually as a beneficiary, for example).

4.              Determine who should be your client(s). Estate litigation often involves individuals acting in different legal capacities, and individuals without legal capacity. Determine whether a potential client has the capacity to hire you, and whether a conflict of interest, or potential conflict of interest, exists. Give particular attention to the potential parties’ capacities, relationships, motives, and possible case developments.

5.              Select proper jurisdiction and venue. The Texas Probate Code, Texas Trust Code, and Texas Civil Practice and Remedies Code contain mandatory and concurrent jurisdiction and venue provisions, as well as options for transferring venue. Determine which apply to your case, and whether other jurisdiction and venue statutes apply to the claim. Resolve any ambiguity or conflicts among the statutes as necessary.

6.              Beware of in terroremClauses. Texas Probate Code § 64 (applicable to the estates of decedents who died on or after June 19, 2009) and Texas Trust Code § 112.038 (applicable to trusts existing on or created on or after June 19, 2009) contain a good faith/probable cause exception to the enforceability of in terrorem (no-contest) clauses. Analyze how any such clauses apply to your clients in their various capacities.

7.              Apply the proper statutes and rules. Probate litigation involves laws that apply specifically to trusts and estates, as well as other substantive areas of law. The statutes and court rules (including local court rules) contain many important provisions, including unique notice requirements. Also, conduct any necessary conflict of laws analysis.

8.              Pursue appropriate claims and remedies. Recognize the rights and duties of beneficiaries, fiduciaries, and other interested parties in analyzing possible claims and remedies. Determine whether any immediate protection is required, such as through a temporary restraining order, and determine the ultimate relief desired. Follow the necessary court procedures and pleading requirements to obtain such relief.

9.              Avoid unintended tax consequences. Arguments and settlements can unintentionally result in tax consequences, now or in the future. Consult the necessary resources to avoid adverse consequences, to the extent possible. Some cases will necessarily result in tax consequences, but be knowledgeable about them.

10.           Know your appellate options. It is not always obvious which court orders are considered final or interlocutory for appellate purposes, and whether appellate remedies such as mandamus are available. If you or an opponent wants to challenge an order, conduct research to determine whether appellate remedies can or must be pursued shortly after the order is rendered, or whether the challenger can or must wait until orders are final.


Melinda H. Sims is an attorney with the law firm Glast, Phillips & Murray, P.C.  She can be reached at msims@gpm-law.com.

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