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What Does It Mean to Probate a Will?

Deciding where to file a probate case is one of the most important decisions a person making a will can make. The person making the petition for probate must decide whether to file a probate case in the county where the decedent lived or in the county where the person making the will owned property. Where do you file a probate case with a probate court depends on the county the decedent lived in, the value of the probate estate, and the nature of the assets in the probate estate. The probate court matters, too.

Legal Terminology

Texas Rule of Civil Procedure 185: When an action or defense is founded on an open account…including any claim for a liquidated money demand for personal service…on which a systematic record, affidavit, lawful offsets, and payments and credits have been allowed, it shall serve as prima facie evidence unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be.

Texas Rule of Civil Procedure 93(k): Requires that the following matters shall be verified by affidavit in the answer of the Defendant:

“(k) That an account which is the foundation of the plaintiff’s action, and supported by the affidavit, is not just; and, in such case, the answer shall state that each and every item is not just or true, or that some specified item or items are not just and true.”

Probate Case

Facts & Procedural History

Mary Elizabeth Brightwell (Defendant), serving as the personal representative (executor) of her late husband, William Nathan Brightwell, was sued by the law office of Barlow, Gardner, Tucker & Garsek (Plaintiffs) after she filed the petition for probate with the probate court. The law office alleged that they had completed personal services and oral services for the deceased person and had kept a systematic record.

In their original petition for probate, the law office stated that William Nathan Brightwell, through members of his family, had retained them to perform professional legal services on May 5 and 6 of 1979; that they met with Mr. Brightwell and the members of his family, including Mary Elizabeth Brightwell, on May 6, 1979; and that Plaintiffs did in fact perform professional services and incur expenses as set out in the account statements attached to the petition.

Evidence Given by Plaintiffs:

Anne Gardner reviewed the will of Mr. Brightwell. She obtained the assistance of Richard Tucker for the tax provisions in the will, and they both traveled to Dallas on May 6, 1979, and conferred at Baylor Hospital with Mr. Brightwell and other members of his family for seven hours. Richard Tucker also created a codicil to the Will and informed Mr. Brightwell’s daughter (Mrs. Hutto) how to execute it. He subsequently conversed with Dr. Brightwell, son of the Testator, and Clifton Holmes, the attorney who had prepared the original Will and who now represents the deceased person’s estate.

During the hearing, the personal representative answered by filing an unsworn general denial of the claims, stating that she did not agree to pay attorney’s fees to the plaintiffs. She also denied making any oral agreement or that the services benefitted her or Mr. Brightwell. Plaintiffs filed a petition for summary judgment, and then Defendant filed a “Defendant’s Response to Plaintiff’s Motion for Summary Judgment” in which no objections or exceptions were made to the motion for summary judgment.

On June 6, 1980, after a hearing on the motion for summary judgment and a trial at which the Court heard evidence limited to the issue of reasonable attorney’s fees under Tex.Rev.Civ.Stat.Ann. art. 2226 (Supp.1980-81), judgment was rendered for Plaintiffs, awarding the sum of $936.63 to Barlow, Gardner, Tucker & Garsek with interest of $24.33 and reasonable attorney’s fees in the amount of $400.00. To Simon, Peebles, Haskell, Gardner & Betty, the judgment awarded the sum of $500.00, with interest of $12.99 and attorney’s fees of $200.00.

Defendant appealed, and the Court of Civil Appeals first stated that the Defendant’s counter-affidavits were insufficient. The Defendant’s general denial of the claims alleged by Plaintiffs did not comply with the Rules 185 and 93(k), and that language of the affidavits in no way tracked the language of the rules, making the documents totally insufficient to constitute an effective denial of the sworn account of the appellees. Therefore, the Defendant was not permitted to raise fact issues on the grounds stated in her affidavits and the plaintiffs were entitled to judgment as a matter of law.

The Court then stated that Defendant’s complaint regarding the trial court’s consideration of the affidavit of Richard Tucker (she stated it was the only proof offered to support the basis for recovery for the Plaintiffs) was waived because it was not raised in trial court. It lastly stated that where suit is against an executor to establish a money demand against an estate, a suit may also be brought in the county in which such estate is administered. The venue was proper in this case. The judgment of the trial court was affirmed.

The Takeaway

Brightwell v. Barlow, et al. shows that:

  • Summary judgment is proper in a suit based on the plaintiff’s verified petition of a sworn account where the defendant has failed to file a sworn denial and there are no issues regarding the amount in which the defendant owes.
  • Any complaints regarding evidential affidavits should be raised in trial court.
  • A suit is properly filed against an independent executrix when it regards applicable statutes and the court in which estate was pending had no jurisdiction whatever of suit.

Do you need a lawyer to probate a will in El Paso, Texas?

Hire an Experienced Probate Attorney in El Paso. Do you need help with a probate matter in El Paso-metro area or the surrounding communities? We are experienced probate lawyers who represent clients with sensitive probate matters. If so, please give us a call us at (915) 292-4400 or use the contact form on our homepage to see how we can help.

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Other Questions for our El Paso Probate Lawyers

What is probate court?

Probate court is a court that deals with the probate of wills and the administration of estates.

How long does probate take?

Probate is the process of administrating a deceased person’s estate. The process of probate can take from several months to several years.

How to become executor of estate?

The executor is a person appointed by the court to administer the estate of a decedent. This person is responsible for settling the estate of the deceased.

How long do you have to file probate after death in South Carolina?

How long do you have to file probate after death in South Carolina? Probate is the legal process used to transfer the assets of a person who has died to their beneficiaries. In South Carolina, the time you have to file probate depends on whether the decedent left a will or not.

How long do you have to file probate after death in New York?

In New York, all probate matters must be filed with the Surrogate’s Court in the county where the deceased person owned property or, if there is no property, where the deceased person resided.

Do you need a lawyer for probate in Florida?

If you are filing a Florida probate case without a lawyer and need to know where to file a probate case.

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