In re Estate of Alexander, 188 S.W.3d 327 (Tex. App.—Waco 2006, no pet.).

Estate Administration



Beneficiary filed suit to probate a nuncupative will in a constitutional county court. The court then granted Beneficiary’s motion to transfer the case to district court even though the county has a statutory county court with probate jurisdiction. The district court found that the decedent died intestate. Beneficiary appealed.

Although Beneficiary did not raise the issue, the appellate court determined that the county court had no legal basis to transfer the case to district court because the county had a statutory county court at law with probate jurisdiction. Probate Code § 5 permits transfer of a probate matter to district court only if the county has no statutory court with probate jurisdiction. Accordingly, “the transfer order is of no effect and any subsequent orders rendered by the district court are void.” In re Estate of Alexander at 331.

The appellate court recognized that if a probate court lacks authority to grant a claimant full relief, then the district court will have jurisdiction to grant these remedies. The court noted that Beneficiary was seeking a constructive trust remedy which neither the constitutional county court nor county court at law had jurisdiction to impose under Probate Code § 5A. In these situations, however, a plaintiff should file suit directly (an original action) in the district court seeking these remedies.

Note: A dissenting justice argued that the appellate court lacked jurisdiction of the case because of an allegedly untimely notice of appeal.

Moral: A party who wishes to seek a remedy in a probate matter which a constitutional or county court at law may not grant, should file an original action seeking that remedy in the district court.