Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, September 25, 2018

Article on Standing and Error Correction in Probate

Probate2R. Kevin Spencer recently published an Article entitled, Standing and Error Correction in Probate, 10 Tex. Tech Est. Plan. & Cmty. Prop. L. J. 299-350 (Summer 2018). Provided below is an abstract of the Article.

Estate and guardianship proceeding are in rem and decisions are binding on the world, often without personal service or direct notice. Error correction in probate is essential because incorrect decisions can adversely affect administrations for years in the future. The Texas state legislature recognizes the importance of inheritance and guardianship and progressively expanded probate jurisdiction, including granting statutory probate courts exclusive jurisdiction over probate matters, and concurrent jurisdiction with district courts over trust and other matters. Statutory probate courts even have the power to transfer cases in other courts in other courts around the state to their own court when the proceeding affects a pending administration - the power affectionately known by practitioners as the "reach-out-and-grab" power. The legislature and courts recognize the difference between a "normal" lawsuit and an ongoing, continuing estate or guardianship administration and the need to accommodate the ability to correct errors well beyond the typical thirty days after an order is signed. The first analysis in every probate proceeding is to determine the parties who have standing in an estate. Persons with standing, i.e. "interest persons" may directly attack orders and judgement for up to two years after entry. Courts have dispensed with the "one-final judgement" rule and instead choose how and when judgements or orders in probate become final and subject to direct appeal to appellate courts. While normal finality and appellate rules apply, direct attack error correction procedures in probate are also allowed beyond the normal appellate timetables. Because probate proceedings can have such a profound impact on peoples' lives and property, judges presiding over probate matters carry a high burden to follow the required procedure, get their decisions right, and afforded a "do-over," if the error standards are met.


Articles, Current Affairs, Estate Planning - Generally, Guardianship | Permalink


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