In re Estate of Hutchins, 391 S.W.3d 578 (Tex. App.—Dallas 2012, no pet.).
One of Testatrix’s children obtained possession of certain items of estate property without proper authority. Independent Executrix filed a “Motion for Turnover Over” in her attempt to force the child to return the estate property. She based her request on Probate Code § 37 which provides that the personal representative has “the right to possession of the estate as it existed at the death of the testator.” The trial court denied the turnover motion on the basis that Independent Executrix was not a judgment creditor and thus could not use the turnover procedure provided in Civil Practice and Remedies Code § 31.002. Independent Executrix petitioned for a writ of mandamus.
The appellate court granted mandamus. The court explained that Independent Executrix was not seeking a turnover order under Civil Practice and Remedies Code § 31.002. Instead, Independent Executrix was specifically requesting relief under Probate Code § 37 which gives the personal representative the right to possession of all estate property.
The court made two other findings. First, that a separate lawsuit under Probate Code § 233A granting the personal representative the right to sue to recover estate property is not necessary to recover estate property under Probate Code § 37. Second, that even if an alleged family agreement actually existed, the personal representative is nonetheless entitled to possession of the estate as it existed on date of death; the court found no case which concluded that § 37 is superseded by a family settlement agreement.
Moral: Family members have a tendency to grab a decedent’s assets even if they have no authority to do so. The personal representative has a right to possession of all estate assets and a duty to acquire that possession. Obtaining a turnover order under the authority of Probate Code § 37 is one way for the personal representative to satisfy that duty.