Walker v. Walker, 152 S.W.3d 220 (Tex. App.—Dallas 2005, no pet.).
Mother died with a valid will leaving her interest in a home equally
to her two daughters (Pattie and Barbara), each of whom had already
inherited a one-quarter interest from Father who had previously died
intestate. Pattie served as the independent executor but took many
actions allegedly in breach of her fiduciary duties such as living in
the house without paying rent or compensating the estate for her use of
the house. Barbara was successful in having Pattie removed as the
independent executor and securing the appointment of a third party as a
dependent executor (Executor). Executor obtained court permission to
sell the house. Pattie appealed raising a variety of jurisdictional
issues including an assertion that the trial court lacked jurisdiction
to order the sale of the house.
The appellate court affirmed. Pattie claimed that Executor had no
authority to sell the house and that the trial court lacked jurisdiction
to issue an order to sell the house because only one-half of the house
was in Mother’s estate. The court examined the Probate Code along with
case law and found nothing to support Pattie’s claim that all joint
owners must join in a request for a partition for the court to have
jurisdiction to issue an order of sale. The court explained that the
probate court’s jurisdiction extended to the one-half interest Mother
did not own under Probate Code § 5A(b) because the partition action was
incident to Mother’s estate.
Moral: The probate court may issue an order to sell estate property even
if an interest in that property is owned by someone other than the
decedent.