In re Estate of Trevino, 415 S.W.3d 442 (Tex. App.—San Antonio 2013, no pet.).


Estate Administration



The testator’s wife filed the testator’s will for probate in the constitutional county court (the county does not have a statutory probate court or county court at law with probate jurisdiction) the same day that her husband died.  A few days later, she filed an action against the testator’s son alleging, among other things, breach of fiduciary duty and undue influence.  Using the authority under Probate Code § 4D(a)(2) [now Estates Code § 32.003(a)(2)], the judge transferred the case to a district court.  Later, the testator’s son objected to the transfer and requested the assignment of a statutory probate court judge which the court denied.  The son then requested a writ of mandamus.


The appellate court conditionally granted the writ.  The court explained that as of the date of the transfer order, no probate matter was contested because the only party who had appeared in the case was the testator’s wife and thus no parties had adopted adversarial positions.  The ability to transfer a probate case to district court does not arise when the matter is filed but instead is triggered when a contest occurs.  It is irrelevant that the testator’s wife anticipated that the testator’s son would file a contest.  Accordingly, the transfer to the district court was improper.


The court also held that denial of the testator’s son request for the assignment of a statutory probate court judge was not an abuse of discretion because his request was not filed until after the transfer order was signed even though the transfer order was itself improper.  The judge has a mandatory duty to grant the assignment motion only if the motion is filed prior to a transfer to a district court under Probate Code § 4D(d) [now Estates Code § 32.003(b)].


Moral:  Do not ask the court do perform an action, such as transferring a case from a constitutional county court to a district court, prematurely, e.g., before a contest actually exists.