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Texas Wills and Probate Law
APPLICATION FOR LETTERS TESTAMENTARY OR OF ADMINISTRATION

TEXAS ESTATES CODE, TITLE 2. SUBTITLE G. CHAPTER 301. 

PERIOD FOR APPLICATION FOR LETTERS

§ 301.001. ADMINISTRATION BEFORE DEATH VOID.

The administration of an estate of a living person is void.

§ 301.002. PERIOD FOR FILING APPLICATION FOR LETTERS TESTAMENTARY OR OF ADMINISTRATION.

(a) Except as provided by Subsection (b) and § 501.006 with respect to a foreign will, an application for the grant of letters testamentary or of administration of an estate must be filed not later than the fourth anniversary of the decedent's death.

(b) This section does not apply if administration is necessary to:

(1) receive or recover property due a decedent's estate; or

(2) prevent real property in a decedent's estate from becoming a danger to the health, safety, or welfare of the general public and the applicant for the issuance of letters testamentary or of administration is a home-rule municipality that is a creditor of the estate.

APPLICATION REQUIREMENTS

§ 301.051. ELIGIBLE APPLICANTS FOR LETTERS.

An executor named in a will, an independent administrator designated by all of the distributees of the decedent under § 401.002(b) or 401.003, or an interested person may file an application with the court for:

(1) the appointment of the executor named in the will; or

(2) the appointment of an administrator, if:

(A) there is a will, but:

(i) no executor is named in the will; or

(ii) the executor named in the will is disqualified, refuses to serve, is dead, or resigns; or

(B) there is no will.

§ 301.052. CONTENTS OF APPLICATION FOR LETTERS OF ADMINISTRATION.

(a) An application for letters of administration when no will is alleged to exist must state:

(1) the applicant's name, domicile, and, if any, relationship to the decedent;

(1-a) the last three numbers of:

(A) the applicant's driver's license number, if applicable; and

(B) the applicant's social security number, if applicable;

(2) the decedent's name and that the decedent died intestate;

(2-a) if known by the applicant at the time the applicant files the application, the last three numbers of the decedent's driver's license number and social security number;

(3) the fact, date, and place of the decedent's death;

(4) facts necessary to show that the court with which the application is filed has venue;

(5) whether the decedent owned property and, if so, include a statement of the property's probable value;

(6) the name and address, if known, whether the heir is an adult or minor, and the relationship to the decedent of each of the decedent's heirs;

(7) if known by the applicant at the time the applicant files the application, whether one or more children were born to or adopted by the decedent and, if so, the name, birth date, and place of birth of each child;

(8) if known by the applicant at the time the applicant files the application, whether the decedent was ever divorced and, if so, when and from whom;

(9) that a necessity exists for administration of the decedent's estate and an allegation of the facts that show that necessity; and

(10) that the applicant is not disqualified by law from acting as administrator.

(b) If an applicant does not state the last three numbers of the decedent's driver's license number or social security number under Subsection (a)(2-a), the application must state the reason the numbers are not stated.

OPPOSITION TO CERTAIN APPLICATIONS

§ 301.101. OPPOSITION TO APPLICATION FOR LETTERS OF ADMINISTRATION.

An interested person may, at any time before an application for letters of administration is granted, file an opposition to the application in writing and may apply for the grant of letters to the interested person or any other person. On the trial, the court, considering the applicable provisions of this code, shall grant letters to the person that seems best entitled to the letters without notice other than the notice given on the original application.

REQUIRED PROOF FOR ISSUANCE OF LETTERS

§ 301.151. GENERAL PROOF REQUIREMENTS.

An applicant for the issuance of letters testamentary or of administration of an estate must prove to the court's satisfaction that:

(1) the person whose estate is the subject of the application is dead;

(2) except as provided by § 301.002(b) with respect to administration necessary to receive or recover property due a decedent's estate, and § 501.006 with respect to a foreign will, four years have not elapsed since the date of the decedent's death and before the application;

(3) the court has jurisdiction and venue over the estate;

(4) citation has been served and returned in the manner and for the period required by this title; and

(5) the person for whom letters testamentary or of administration are sought is entitled by law to the letters and is not disqualified.

§ 301.152. ADDITIONAL PROOF REQUIRED FOR LETTERS TESTAMENTARY.

If letters testamentary are to be granted, it must appear to the court that:

(1) the proof required for the probate of the will has been made; and

(2) the person to whom the letters are to be granted is named as executor in the will.

§ 301.153. ADDITIONAL PROOF REQUIRED FOR LETTERS OF ADMINISTRATION; EFFECT OF FINDING NO NECESSITY FOR ADMINISTRATION EXISTS.

(a) If letters of administration are to be granted, the applicant for the letters must prove to the court's satisfaction that a necessity for an administration of the estate exists.

(b) If an application is filed for letters of administration but the court finds that no necessity for an administration of the estate exists, the court shall recite in the court's order refusing the application that no necessity for an administration exists.

(c) A court order containing a recital that no necessity for an administration of the estate exists constitutes sufficient legal authority for each person who owes money, has custody of property, or acts as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, and to each person purchasing or otherwise dealing with the estate, for payment or transfer to the distributees.

(d) A distributee is entitled to enforce by suit the distributee's right to payment or transfer described by Subsection (c).

§ 301.154. PROOF REQUIRED WHEN LETTERS HAVE PREVIOUSLY BEEN GRANTED.

If letters testamentary or of administration have previously been granted with respect to an estate, an applicant for the granting of subsequent letters must show only that the person for whom the letters are sought is entitled by law to the letters and is not disqualified.

§ 301.155. AUTHORIZED METHODS OF PROOF.

A fact contained in an application for issuance of letters testamentary or of administration or any other fact required to be proved by this subchapter may be proved by the sworn testimony of a witness with personal knowledge of the fact that is:

(1) taken in open court; or

(2) if proved under oath to the satisfaction of the court that the witness is unavailable, taken by deposition on written questions in accordance with § 51.203 or the Texas Rules of Civil Procedure.

PREVENTION OF ADMINISTRATION

§ 301.201. METHOD OF PREVENTING ADMINISTRATION REQUESTED BY CREDITOR.

(a) If a creditor files an application for letters of administration of an estate, another interested person who does not desire the administration can defeat the application by:

(1) paying the creditor's claim;

(2) proving to the court's satisfaction that the creditor's claim is fictitious, fraudulent, illegal, or barred by limitation; or

(3) executing a bond that is:

(A) payable to, and to be approved by, the judge in an amount that is twice the amount of the creditor's claim; and

(B) conditioned on the obligors paying the claim on the establishment of the claim by suit in any court in the county having jurisdiction of the amount.

(b) A bond executed and approved under Subsection (a)(3) must be filed with the county clerk.

§ 301.202. SUIT ON BOND.

Any creditor for whose protection a bond is executed under § 301.201(a)(3) may sue on the bond in the creditor's own name to recover the creditor's claim.

§ 301.203. BOND SECURED BY LIEN.

If a bond is executed and approved under § 301.201(a)(3), a lien exists on all of the estate in the possession of the distributees, and those claiming under the distributees with notice of the lien, to secure the ultimate payment of the bond.

Questions?  Call us now to speak with an experienced estate planning and probate attorney. 

 (469) 630-2550