PROBATE & GUARDIANSHIP MATTERS

THE FOLLOWING INFORMATION IS GENERAL INFORMATION AND GUIDANCE FOR PRACTICING CIVIL LITIGATION IN COUNTY COURT AT LAW NO. 1.  THIS INFORMATION IS IN NO WAY INTENDED AS LEGAL ADVICE SPECIFIC TO ANY INDIVIDUAL, BUT IS MERELY FOR INFORMATIONAL PURPOSES ONLY.

PEACE OFFICER WHO HAVE ARRESTED OR DETAINED A WARD OF THIS COURT
Any peace officer who arrests or detains a person currently under guardianship of this Court has a statutory duty pursuant to Tex. Code of Crim. Proc. 14.055(b), to notify this Court of the person’s arrest or detention.  Peace officers can provide notice to this Court by submitting a summary email to anita.ayala@fortbendcountytx.gov.

THE COURT’S PROBATE & GUARDIANSHIP SCHEDULE

UNCONTESTED MATTERS are heard on designated Monday mornings at 9:00 a.m.  The Court holds Zoom hearings every other week.  All other uncontested hearings will be held IN-PERSON.

Note: The Court will offer each party requesting a hearing an IN-PERSON and Zoom hearing date. You will confirm with the probate auditor via email which of the two dates you wish to schedule your hearing. Your hearing date will be confirmed by a follow up email from the Probate Auditor. If you fail to receive an email confirming the date you selected, your hearing has not been properly scheduled. Please contact/email the Probate Auditor immediately.

CONTESTED MATTERS are heard on designated Monday afternoons at 1:30p.m. Hearings that are anticipated to last more than 1.5 hours will be scheduled as the Courts’ calendar permits. Contested matters will be set for IN-PERSON hearings only. 

JURY TRIALS are heard on designated Tuesdays at 10:00 a.m. The Court will hold an IN-PERSON Pre-trial conference at least one week prior to the jury trial date. Please contact the Probate Auditor, Anita Ayala for available dates.

Note: A Docket Control Order will be entered by the Court in all cases set for trial.

PROBATE PROCEEDINGS

REQUIRED DOCUMENTS FOR UNCONTESTED HEARINGS

  1. The original Will must be filed with the County Clerk’s Office prior to scheduling a hearing.
  2. The ad litem deposit (see Standing Administrative Order) must be paid into the Registry of the Court prior to scheduling a hearing.
  3. Once a hearing is scheduled: 
    1. IT IS THE COURT’S POLICY TO REVIEW ALL DOCUMENTS, JUDGMENTS AND ORDERS before uncontested hearings. Thus, the Court’s Probate Auditor must receive the proposed order or judgment seven (7) days prior to the scheduled hearing.
    2. THE FINAL ORDER OR JUDGMENT MUST BE SIGNED BY ALL ATTORNEYS, and if the order is agreed between the parties, the agreed order must be e-filed seven (7) days prior to the scheduled hearing, and the Probate Auditor notified by email of the filing.
    3. ANCILLARY DOCUMENTS must be filed seven (7) days prior to the scheduled hearing date. Ancillary documents include: (1) Ad Litem Reports; (2) death certificates; (3) oaths; (4) testimony; and (5) JBCC Registration.
    4. TESTIMONY VIA DEPOSITION ON WRITTEN QUESTIONS/POSTED NOTICE REQUIREMENT Applicants on the uncontested docket wishing to submit testimony via deposition on written questions must file the deposition responses fourteen (14) days prior to the scheduled hearing. The Court may require supplemental deposition questions/responses if they are found inadequate.

NOTICE
The Court may postpone or cancel a hearing if an attorney fails to comply with the above posted guidelines for submitting uncontested docket paperwork.

CONTESTED HEARINGS INFORMATION

  1. Due to filing delays with the County Clerk’s Office, all documents that the litigants wish the Court to review must be e-filed three (3) business days prior to the hearing date.

SMALL ESTATE AFFIDAVITS

The Court requires all Small Estate Affidavits to utilize the format as established by the Board of County Courts at Law Judges. You may download the Small Estate Affidavit here. Small Estate instructions/checklist have been provided for your assistance.  If you have questions beyond the instructions/checklist, the Court recommends consulting with an attorney.

MUNIMENT OF TITLE PROCEEDINGS

MEDICAID ESTATE RECOVERY PROGRAM (MERP) - If the decedent applied for and received Medicaid benefits on or before March 1, 2005, but there is no Medicaid claim against the estate, a MERP certification that the decedent’s estate is not subject to a MERP claim is required to be filed. You can find the Fort Bend County’s Policy regarding Muniments of Title here.

ATTORNEY AD LITEMS (AAL) shall be appointed to represent the interest of any heirs whose addresses are unknown in a proceeding to probate a will as a Muniment of Title after four years.

AFFIDAVIT OF FULFILLMENT OF TERMS (“AFFIDAVIT”) will not be waived unless, (1) The Applicant is the sole heir under the will; or (2) All beneficiaries join in the application, file a waiver, or appear in court. Waivers must include language that the beneficiary is requesting that the requirement of the filing of an Affidavit be waived.

PROBATING A WILL MORE THAN FOUR YEARS AFTER DECEDENT’S DEATH – Reference “more than four years after death of testator” in the title and body of the application and order. All heirs and devisees under the Will must be personally served with citation, or in the alternative, file an “Affidavit Waiving Citation and Waiving Objection for Probate of a Will More than Four Years after Decedent’s Death.”

INDEPENDENT ADMINISTRATIONS

SOCIAL SECURITY AND DRIVER’S LICENSE NUMBERS ON APPLICATIONS - Estates Code Sections 256.052(a), 257.051(a) and 301.052 require applications to probate a will and applications for letters of administration to include the last three digits of the applicant’s social security number and driver’s license number and, if known, the last three digits of the decedent’s social security number and driver’s license number.

EXACT NAMES AND ALIASES – The Court requires all pleadings to begin with the exact names as they appear in the will for the decedent and executor, even if the person is now known by another name. The exact name can be followed by the “now known as” name – or any other a/k/a or f/k/a/ name.

ALTERNATE EXECUTOR – If anyone other than the first-named executor in the will is being appointed, be sure to include the name of the first-named executor and why he/she cannot serve. Do this for all other named executors who will not serve but who have priority over the executor(s) who will serve. Also, include this information in the findings section of the order.

EXECUTOR - The Court will require the Executor/Applicant to personally appear before the Court to prove up the Will, unless the Applicant’s attorney drafted the will.

PROBATING A WILL THAT IS NOT SELF-PROVED – The Court requires all necessary witnesses to be present to give testimony. All witness testimony shall be reduced to writing.

PROBATING A COPY OF A WILL OR CODICIL OR A LOST WILL OR CODICIL - Reference “copy” in the title and body of the application, order, proof, and oath. Physically file the copy of the will or codicil that is being offered for probate with the County Clerk as if it were an original document. This allows the Court to properly evaluate the copy of the will or codicil that is being offered for probate.  All heirs and devisees under the Will must be personally served with citation, or in the alternative, file an “Affidavit Waiving Citation for Probate of a Copy of a Lost Will or Codicil or Probate of a Lost Will or Codicil without a Copy”

DEPENDENT ADMINISTRATIONS

MINOR HEIRS - The Court will require a dependent administration if a decedent dies intestate and any heirs are minors, unless extraordinary circumstances are brought to the Court’s attention. Please note that adults under a Court Ordered Guardianship are considered minors under this section.
 
HEIRSHIP DETERMINATIONS IN DEPENDENTS – The Court will require that heirship of the decedent be determined at the time a dependent administrator is appointed, unless extraordinary circumstances are brought to the Court’s attention. If a dependent administrator is appointed without an heirship determination, the Court will set a deadline whereby the heirship determination will occur.

HEIRSHIP PROCEEDINGS

I.    THE FOLLOWING IS REQUIRED IN ALL HEIRSHIP PROCEEDING IN COUNTY COURT AT LAW NO. 1:

  1. TWO DISINTERESTED WITNESSES are required to prove up an heirship. Additionally, all witness testimony shall be reduced to writing.
  2. JUDGMENTS must comply with intestate distribution laws. Even if the applicant is claiming the estate consists of only community property, the Judgment must address distribution of separate property as the Court is not making a finding as to the character of property. Attorney Ad Litem Fees shall be addressed in a separate Order.
  3. ADULT HEIRS MUST WAIVE CITATION, be personally served citation (no private process), or receive citation by certified mail. Citations are issued via the County Clerk’s Office. Return Receipts will not be accepted from attorneys.
  4. AFFIDAVIT OF SERVICE OF CITATION – A sworn affidavit from the applicant or a certificate signed by the applicant’s attorney stating that all required citation was served, including names of person who were served or who waived citation must be filed seven (7) days prior to the scheduled hearing date. It shall include copies of all required citations along with proof of service.
  5. AD LITEMS shall file a written report seven (7) days prior to the hearing. Ad Litems should familiarize themselves with the most current Ad Litem Manual.

GUARDIANSHIP PROCEEDINGS

THE TEXAS BAR FOUR (4) HOUR AD LITEM CERTIFICATION must be e-filed by all applicant attorneys filing a new guardianship proceeding, along with the application.

CRIMINAL BACKGROUND CHECK with the JBCC is required of all proposed guardians, except for attorney’s who are applying to serve as a guardian.  A hearing will not be scheduled until the Court has the criminal background check.

HEALTH CARE PROVIDER’S CERTIFICATE OF MEDICAL EXAMINATION FORM - make sure to provide the doctor with the most recent version.  We will accept your own form, but make sure it complies with the code.
 
REGISTRATION AND TRAINING with the JBCC must be completed as soon as possible but no later than ten business days prior to the scheduled hearing.

ANNUAL REPORT FORM shall be completed by all guardians appointed by the Court. Failure to timely file the Annual Report may result in a Show Cause Hearing or the removal of the guardian. For further information on how and when to file the Annual Report, please contact the Administrative Clerk, Morgan Diers. Other guardian forms include:

GENERAL INFORMATION

PERSONAL REPRESENTATIVE GENERAL INFORMATION SHEET, needs to be completed for all persons who are appointed in a fiduciary role (Executor, Administrator, and Guardian). If multiple persons are appointed in a case, each individual will need to complete the form. The form is to be returned to the Probate Auditor via email (DO NOT E-FILE).

AD LITEM INFORMATION

ALL ATTORNEYS SEEKING AD LITEM APPOINTMENTS must meet the requirements listed with in the First Amended Standing Administrative Order on Attorney and Guardian Ad Litem Appointment Lists. No exceptions will be allowed. In February of each year the court will hold its annual “Practicing Probate in County Court at Law No. 1”. All attorneys seeking ad litem appointments must attend this course. The date will be emailed to all attorneys contained within the Court’s email list or who have expressed an interest in serving as an ad litem. For further information, please contact the Probate Auditor.

WRITTEN REPORTS shall be filed by the Ad Litem in all Heirship proceedings seven (7) days prior to the hearing date. Ad Litems in guardianship proceedings are not required to file a report.

THE ORDER AUTHORIZING APPOINTEE FEES shall be used by Ad Litems in all Heirship and Guardianship proceedings, with few exceptions. For further directions on how and when to utilize this forms, please contact the Probate Auditor.

QUICK TIP
Ad Litems should familiarize themselves with the most current version of the Ad Litem Manual drafted by Judge Steve M. King.