Most probate files in Travis County are paperwork, and they stay that way. Some turn into lawsuits, and from then on the case runs on pleadings, discovery and hearings. Our Austin office handles those contested cases in the Travis County probate courts.
An administration stays clerical until someone with a right to be heard disagrees about something only a judge can decide. Before that point you’re dealing with notices, deadlines and an inventory. After it you’re dealing with pleadings, discovery, hearing settings and sometimes a jury.
Nobody announces the change. Usually it shows up as an executor who stops returning calls, an inventory that never gets filed, a relative who has moved into the house, or an heirship application that leaves a child off the list.
Texas Estates Code 404.001 lets any interested person demand an accounting from an independent executor once 15 months have passed since the clerk first issued letters testamentary or of administration. If the executor doesn’t comply within 60 days after receiving the demand, the person who made it can sue in the probate court to compel compliance.
We use that statute to sort out whether a beneficiary is being stonewalled or the estate is simply moving slowly. Send the demand in writing and count the 60 days. At the end you’ll have either the numbers or a record to support the next filing.
Contesting a will challenges the will itself. The usual grounds are lack of capacity, undue influence, defective execution, forgery, or a later will that revoked the one on file. Will contests also carry a firm filing deadline.
Texas Estates Code 256.204 generally gives an interested person two years after a will is admitted to probate to contest it. A suit based on forgery or other fraud may be filed within two years after the forgery or fraud is discovered, and an incapacitated person has two years after the disability is removed.
Removing an executor or administrator leaves the will in place and goes after the person serving under it. Common reasons include a missing inventory or accounting, self-dealing, and a conflict of interest that keeps the fiduciary from doing the job. When the misconduct has already cost the estate money, we pair removal with breach of fiduciary duty claims, because removal by itself doesn’t recover what was lost.
Contested heirship proceedings decide who the heirs are when there’s no will, or when someone appears claiming a share nobody expected.
Estates Code 202.008 requires that each unknown heir, each heir named in the application, and each person the county deed records show as owning an interest in real property described in the application be made a party. Under Estates Code 202.009(a), the court must appoint an attorney ad litem to represent heirs whose names or locations are unknown.
Some disputes call for a structural fix. When the fight is over who controls the estate, a dependent administration puts the judge between the administrator and every significant act. When the estate holds a closely held business, mineral interests or a trust, the matter belongs with our large and complex estates practice.
We take contested probate work, dependent administrations, and large or complex estates. That includes will contests, executor and administrator removal, breach of fiduciary duty claims, contested heirship proceedings, inherited real property disputes, contested guardianship and guardian removal, and trust litigation.
We don’t handle muniment of title, small estate affidavits, affidavits of heirship, simple wills, estate planning, or routine uncontested administration. Most Travis County estates need only one of those services, and a litigation firm is the wrong place to get them.
People often confuse two of these. An affidavit of heirship is a form signed outside of court by people who knew the family, while a contested heirship proceeding is a court case in which a judge decides who the heirs are. We handle the court case.
If you can’t tell which category your matter falls into, call (512) 273-7444 and we’ll tell you.
Travis County has two statutory probate courts. Probate Court No. 1 sits under Judge Guy Herman and Probate Court No. 2 under Judge Nicholas Chu, and both are at 200 W. 8th Street in downtown Austin. Under Local Rule 1.3(a)(4), the two judges may sit and act for each other without a formal appointment.
Travis County Probate Courts Local Rule 1.1(d) makes the local rules standing orders of the courts. A knowing or intentional violation may be punished by contempt or other sanction.
Because the rules are standing orders, the procedures below are enforceable, and a lawyer who ignores them puts the client’s case at risk.
Every hearing in these courts is specifically set. Local Rule 3.1(a) lists the dockets as jury, uncontested guardianship, uncontested probate, sales, mental health, and a regular docket for everything else. Local Rule 3.1(b) says none of them is a drop-in docket.
Before you request a setting, you’re expected to work with the other side. Local Rule 3.2(a)(2) says the court strongly prefers that all counsel, including any pro se party and any appointed attorney ad litem or guardian ad litem, confer and agree on possible hearing dates and times before a date is requested. Rule 3.2(a)(3) asks counsel to confer about the time the whole hearing will take so the estimate in the request is accurate. An opponent who won’t return calls can hold up your hearing.
Once you have a setting, giving notice is your job. Under Local Rule 3.3 the court doesn’t send notices of settings. The party that obtained the setting must notify every other party.
Mediation can be ordered even if neither side asks for it. Under Local Rule 5.1 the court may refer a case to mediation or another ADR procedure on its own motion or by agreement of the parties. Most contested estates settle, usually after discovery gives both sides enough information to value their risk.
A case that sits idle can be dismissed. Local Rule 6.1(b) makes a case eligible for dismissal for want of prosecution on the court’s own motion if it has been on file more than 12 months, isn’t set for trial, and has had no settings or substantive filings within 180 days. Contested probates commonly run well over a year, so a file that’s worked slowly can reach that point without anyone intending it.
Bring the cause number if there is one, the will if you’ve seen it, and a short summary of what the executor has and hasn’t done. We’ll tell you whether you have a case worth filing or routine work that you shouldn’t pay a litigation firm to handle.
The first conversation is short and free.