Estate Administration


Moore v. Johnson, 143 S.W.3d 339 (Tex. App.—Dallas 2004, no pet.).


Patient brought a medical malpractice against Doctor and subsequently died while the lawsuit was pending. The court admitted Patient’s will to probate and appointed her children as independent executors. They filed a suggestion of death, requested that they be named as plaintiffs, and that the suit continue in their names. Without specifying any grounds, the trial judge granted Doctor a summary judgment on all claims. The independent executors appealed.

The appellate court reversed. The court examined Doctor’s claim that the independent executors lacked standing because they did not file letters testamentary when they make the request to be substituted as plaintiffs in the malpractice action. The court also reviewed Doctor’s claim that the substitution was inappropriate because one of the independent executors took the oath of office after filing the substitution request. The court rejected these claims. Both independent executors were duly qualified years before Doctor filed the summary judgment motion. The court also explained that the issuance of letters is a ministerial act under Probate Code § 182. Texas law does not require that letters testamentary be filed along with the suggestion of death.

Moral: To avoid this type of suit, a personal representative may find it helpful to promptly file the oath, give any necessary bond, and obtain letters before filing a suggestion of death. A copy of the letters may then be filed along with the suggestion of death.