PROBATE PROCEDURES AND ALTERNATIVES

1 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 th 11 ANNUAL BUILDING BLOCKS OF WILLS, ESTATES AND PROBATE COURSE. January 15, 2010. Via Webcast CHAPTER PROBATE PROCEDURES and ALTERNATIVES Chapter 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 Decedent's 8. Waiver of Notice of Admission of 9. Personal Representative's Affidavit of 10. Attorney's Certificate of 11. Notice to Beneficiary Named in Decedent's 12. D. COURT INSTRUCTIONS: INDEPENDENT EXECUTOR/INDEPENDENT ADMINISTRATOR.

2 13. E. ALTERNATIVES TO PROBATE .. 15. F. ACCESS TO SAFE DEPOSIT BOX WITH & WITHOUT COURT ORDER .. 18. G. THE INVENTORY, APPRAISEMENT & LIST OF 19. Inventory .. 22. Order .. 24. H. MOTION TO DELIVER 25. Order to Show Cause .. 26. I. SHOW CAUSE & REMOVAL OF PERSONAL REPRESENTATIVE .. 27. Grounds for 30. J. DIVISION OF PROPERTY UPON INTESTACY .. 31. K. TEXAS PROBATE CODE THUMB-TAB INDEX (2010) .. 32. i PROBATE PROCEDURES and ALTERNATIVES Chapter PROBATE PROCEDURE AND required by the appropriate Code Sections. See #2. ALTERNATIVES 2. Prepared Testimony: Unless a record is being made by a court reporter, always have your WHAT EVERY PRACTITIONER SHOULD testimony reduced to writing, in all cases, for KNOW ABOUT PROBATE .

3 All witnesses, every time. OR 3. Fill in all the blanks you can, especially the date (or at least provide a date line long WHAT WAS IT THE JUDGE SAID THAT enough). If the court has already had to carve DAY ABOUT .? up your order with corrections and interlineations, it takes all that much longer to It's Monday and you have a PROBATE case. You've fill in the case number, the court designation, managed to get to the courthouse and locate your clients. the date of the hearing, the date the application So far, so good. You've had time to go over their was filed and the date signed. We go through testimony for your prove-up and answer their preliminary about 140 orders and copies on a Monday.

4 Questions. You've checked in with the bailiff and seen 4. Proofread!! - Did you remember to change that you're about three cases down, so you settle in to one the names and dates from the last time the of the benchs in the back of the courtroom and try to computer prepared that form? Do they match keep your clients from talking out loud and getting a between the Will, your Application, the Proof dirty look from the bailiff. Here are some things to think and the Order? about while you are waiting for your case to be called, 5. Social Security Numbers - Please provide the court clerk the Social Security Numbers for the A. General Observations: Death is not the End.

5 There Decedent and Applicant (on a separate sheet remains the litigation over the estate. Ambrose Bierce for the court's records). 6. Appointment of Resident Agent - If your 1. If you have never done so, go watch the Applicant is not a Texas resident and has not uncontested hearing docket to get an idea of appointed a resident agent for service, they are the flow. disqualified by law until such an agent is 2. Assume I have read your pleadings. designated. Bring your completed form with 3. The Court would usually rather be relieved you to the hearing. (see 10 below). than surprised. If you have an unusual fact 7. Absence of witnesses? Consider depositions situation (or the situation is not what it by written questions (hint: It's TPC 22 & 84, appears), find some way to plead it.)

6 Please not TRCP 208). don't make the court guess at what is going 8. If you are filing something within three days of on and have to delay your hearing until we find the hearing, bring a courtesy copy to the court. out. 9. Conformed copies: at the bench or down the 4. It is not always better to get forgiveness than hall? Find out how your judge prefers to permission ask first. handle it. Hand the judge your copies when 5. Check in with the bailiff - not with the court you start, not at the end of the prove-up. coordinator. 10. Documents that are ready to be filed ( 6. Call if you're not coming. Have your clients notarized waivers, designations of resident wait in the hallway agent) need to be filed with the clerk prior to 7.

7 Buy and use a current PROBATE Code! The the hearing and a file-marked copy brought to Legislature meets every two years and repeals the hearing. The risk of losing an executed but everything you knew. unfiled and unscanned document is then avoided. B. Paperwork: We can lick gravity, but sometimes the 11. Correspondence on the case should be sent to paperwork is overwhelming. Wernher von Braun other counsel, ad litems and pro se parties (but not the court). 1. Paperwork to Have on Hand - If you will be putting on testimony during the hearing, bring C. Decorum: The true test of character is not how much a completed Proof of Facts, Appropriate Oath we know how to do, but how we behave when we don't (to be executed after the testimony is given in know what to do.)

8 Open court), appropriate Bond and proposed Order. Make sure you track the findings 1. No tobacco/ No gum/ No shorts/ No hats/ No cell phones/ No pagers/ No client conferences 1. PROBATE PROCEDURES and ALTERNATIVES Chapter in the courtroom/ No talking in the courtroom 4. LEAD the witness and avoid droning repetition (unless you are addressing the court or and irritating speech habits. examining a witness). 5. Be a Hero: If you have personal knowledge of 2. Although you are standing at the bench rather the Decedent and his/her family and your client than standing to address the court from the cannot appear, give the testimony yourself. counsel table this is still a formal proceeding 6.

9 Examine subsequent witnesses summarily. and your conduct should reflect such. 7. If you expect a bond, put on sufficient 3. While this is a public building, it is a court of testimony on the nature and extent of the law, not the bus station. Estate to enable the court to set bond. 4. Most courts have written notices posted with 8. (Ad Litems): Even if you do not actively regard to the rules of decorum for the court. contest the application, make sure the court has As a result, you and your clients/witnesses may a full picture of the situation. Rather than or may not be given a warning of infractions merely saying "No questions," ask questions to before the court either asks you to leave or highlight any points not covered by the holds someone in contempt.

10 Applicant or Guardian Ad Litem. But use 5. If the court has a dress code, observe it. some judgment. Sometime No questions is Advise your clients accordingly or re-schedule the proper tactic. your hearing. 9. Trainwrecks: If something unexpected happens 6. A telephone going off in the courtroom is and the order is not going to be signed right usually followed by impoundment of the then, think fast and see if some of your time telephone or an immediate finding of and work can be salvaged. contempt. 7. Talking in the courtroom is not only - if you failed to have your testimony disrespectful, it is disruptive to the judge trying reduced to writing, the court may pass to hear a witness who is too scared to speak up.