Estate Administration

Standing of Heir to Bring Survival Action

Pratho v. Zapata, 157 S.W.3d 832 (Tex. App.—Fort Worth 2005, no pet.).


Decedent died from a heart attack. Heirs asserted that his death was hastened by Doctor’s failure to diagnose his heart condition. The suit was, however, not brought by the personal representative of Decedent’s estate as would normally be the case. Instead, Decedent’s widow and children brought the action. The jury determined that Doctor was negligent. However, the court granted a judgment notwithstanding the verdict in favor of Doctor on the survival claim (Decedent’s pain and suffering before death) because Widow lacked standing. Widow appealed.

The appellate court reversed. Typically, the personal representative of a decedent’s estate is the proper person to bring a survival action. See Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998). However, the court explained that Widow had standing because (1) an administration of Decedent’s estate was not pending and (2) no administration was necessary. It was true that Widow had requested letters of administration while the trial was taking place but her request was not granted until two months after the jury’s verdict. The court held that an estate is not pending until a personal representative is actually appointed. Thus, at the time of the trial, Decedent’s estate was not pending so there was no personal representative who could have brought the suit.

The court was not troubled by the fact that after the trial but before the trial court rendered judgment, Widow received letters. The court determined that the trial court should have granted Widow’s post-trial motion to change the plaintiff, even though it was filed outside the statute of limitations. The amended petition would relate back to the earlier petition because Widow had plead and proved standing as an heir at the time of trial. [This principle was later confirmed by the Supreme Court of Texas in Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005).]

The court was, however, initially concerned with Widow’s compliance with the requirement that no probate was necessary. Widow was making conflicting assertions. At the trial, she stated that no administration was necessary (that is, estate debts were paid and there was an agreement regarding the distribution of estate assets) but at the same time she was asserting in probate court in her application for letters that a necessity existed. The court determined that the conflicting assertions were not relevant – what was important was the situation that actually existed at the time of trial. The court reviewed the evidence which showed that at the time of the trial, no need for an administration of Decedent’s estate existed – the debts had been paid and the heirs had agreed to a distribution of his estate.

Note: A concurring justice in a lengthy opinion advocated that “[t]he requirement that heirs must plead and prove no administration is pending and none is necessary should not be applied to statutory survival actions.” Pratho at 855.

Moral: An heir may bring a survival action if (1) an administration of the decedent’s estate is not pending and (2) no administration is necessary. However, to avoid the type of litigation which occurred in this case, it may be better practice to have a personal representative appointed to bring the action.