Coleman v. Winn-Coleman, Inc., 110 S.W.3d 104 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
Intestate died survived by Wife and their two children. No
administration was opened for Intestate’s estate. One of the assets in
Intestate’s estate was a promissory note on which he was the named
payee. Wife sued to collect the note asserting the note was community
property and that she had the right to recover on the note as the
unqualified community administrator of Intestate’s estate under Probate
Code § 160. The trial court granted summary judgment in favor of the
makers of the note because no court had yet to declare Wife as
Intestate’s heir in an heirship proceeding.
The appellate court reversed. The court explained that under Probate
Code § 45, all community property passed to Wife because all of
Intestate’s descendants were also the descendants of the surviving
spouse. In this situation, Probate Code § 155 states that no
administration of community property is necessary. Probate Code § 160
then provides that the surviving spouse has the power to sue for the
recovery of community property and to collect claims due to the
community estate unless someone has qualified as the administrator.
Accordingly, Wife had the authority to sue the makers of the promissory
note.
Moral: A surviving spouse who is the sole heir to the community property
need not first obtain a judicial declaration of heirship to recover
community property when no one has been appointed as the personal
representative of the deceased spouse’s estate.