another dead seller? how to keep your deal alive
TRANSCRIPT
ANOTHER DEAD SELLER?
HOW TO KEEP YOUR DEAL ALIVE
JEAN E. BAILEY
Vice President and Underwriting Counsel
RATTIKIN TITLE COMPANY
9675 Camp Bowie Blvd. West
Fort Worth, Texas 76116
817-334-9603
SUZANNE FROSSARD
M. SUZANNE FROSSARD, P.C.
3709 S. University Drive
Fort Worth, Texas 76109
817-924-3211
THE 21ST ANNUAL ROBERT C. SNEED
TEXAS LAND TITLE INSTITUTE Dec 1-2, 2011
San Antonio, Texas
TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................................................1
II. DISTINGUISHING INTESTACY FROM TESTACY.......................................................1
III. WHAT WILL? DO WE HAVE TO PROBATE A WILL? ...............................................1
A. Intestate Succession .................................................................................................1 B. Affidavit of Heirship ................................................................................................2 C. Small Estate Affidavit ..............................................................................................5 D. Judicial Determination of Heirship ..........................................................................6
IV. WHERE THERE’S A WILL, THERE’S A WAY – EVEN IF DECEDENT DIED
OVER FOUR YEARS AGO ...............................................................................................9
A. Probate Proceedings Must be Initiated Within Four Years. ....................................9
B. Muniment of Title. ...................................................................................................9
V. PERSONAL REPRESENTATIVES AND THE AWESOME POWER OF SALE .........11 A. Powers of Representatives .....................................................................................11 B. Power of Sale Granted in the Will .........................................................................11
C. Power of Sale Necessary to Pay Expenses ............................................................12 D. Power of Sale by Agreement. ................................................................................12
VI. WHAT EXECUTOR? THAT EXECUTOR DIED YEARS AGO! ..................................14 A. TPC § 145(d)- Appointment of Independent Administrator..................................14 B. TPC § 220 Appointment of Successor Representative ..........................................15
C. 2011 Legislative Changes Impacting Executors ....................................................16
VII. BUT ALL THE HEIRS AGREE! WHY DOES THE DEPENDENT
ADMINISTRATOR HAVE TO OBTAIN COURT APPROVAL TO SELL THE
REAL PROPERTY? ..........................................................................................................17
A. Property Subject to Sale. ........................................................................................17 B. Four-Step Process for Sale: All Steps Completed Before Closing. .......................17
VIII. THE SELLER IS A MINOR .............................................................................................19
IX. CONCLUSION ..................................................................................................................20
APPENDIX A Intestate Succession in Texas of Real Property
APPENDIX B-1 Affidavit of Facts Concerning the Identity of Heirs
APPENDIX B-2 Affidavit of Facts Concerning the Identity of Heirs
APPENDIX B-3 Affidavit of Facts Concerning the Identity of Heirs
APPENDIX C Application to Determine and Declare Heirship
APPENDIX D Judgment Declaring Heirship
APPENDIX E Application for Probate of Will as a Muniment of Title
APPENDIX F Order Admitting Will to Probate as a Muniment of Title
APPENDIX G Notice Under Probate Code Section 128B
APPENDIX H Affidavit and Waiver of Notice Under Probate Code Section 128B
APPENDIX I Texas Probate Code Sections 145A, 145B, and 145C
APPENDIX J Application for Letters of Independent Administration
Pursuant to §145(c)(or 145(d) or 145(e)), Texas Probate Code
APPENDIX K-1 Application for Appointment of Successor Independent Executrix
and Issuance of New Letters Testamentary in Accordance
with § 220 of the Texas Probate Code
APPENDIX K-2 Proof of Need for Continuation of Administration for Estate
APPENDIX K-3 Appointment of Resident Agent
APPENDIX K-4 Oath of Successor Independent Executrix
APPENDIX K-5 Order Granting Application for Appointment of Successor Independent
Executrix and Issuance of New Letters Testamentary in Accordance
with § 220 of the Texas Probate Code
APPENDIX L Application for Court-Approved Sale of Real Property
APPENDIX M Order Permitting Sale of Real Property
APPENDIX N Report of Sale of Real Property
APPENDIX O Order Confirming Sale of Real Property
APPENDIX P Application for § 889 Sale of Real Property of a Minor by an
Adoptive Parent
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ANOTHER DEAD SELLER? HOW TO KEEP YOUR DEAL ALIVE
I. INTRODUCTION
Real estate and title professionals cannot ignore the impact that the death of an individual
holding title to real property has on a closing. In fact, one of the most common issues in a title
search is vesting of title following the death of the record owner. The death of a property owner
alone should not cause the untimely death of the deal.
This paper is not intended to be an exhaustive treatise on the Texas Probate Code. There
are many reliable resources which cannot be rivaled. Instead, the goal of this paper is to provide
a guide of practical solutions to the common problems encountered by the real estate
professional in Texas when the owner of real property is deceased.
Many times, a solution offered by a probate practitioner unfamiliar with the intricacies of
the title industry might comply technically with the probate code but in practicality might not be
adequate for title insurance underwriters. Other times, the same probate attorney might hesitate
to offer a solution when the solution actually might be acceptable to a title insurance underwriter.
This paper will explore these discrepancies and attempt to provide some useful and practical
solutions to keep the deal alive when a deceased record title owner is involved.
II. DISTINGUISHING INTESTACY FROM TESTACY
When a person dies and does not leave a valid will, the person dies “intestate.” As of the
date of death of a decedent dying intestate, property passes according to the laws of descent and
distribution found in the Texas Probate Code (hereinafter “TPC”) §§ 38- 47A.
When a person dies leaving a will, and that will is probated, the person dies “testate.”
Upon probate of the will, the decedent’s property passes according to the terms of the decedent’s
will, but date of ownership is as of the decedent’s date of death. If a person dies with a will, but
the will is not probated, property passes as if the person died intestate. If the will does not fully
devise or bequeath all of decedent’s property, such un-devised or un-bequeathed property will
vest in the testator’s heirs at law. TPC § 37. This may occur if the will does not include a
residuary clause.
III. WHAT WILL? DO WE HAVE TO PROBATE A WILL?
If the decedent does not have a will, or if the family and/or heirs or devisees choose not
to probate the will, title passes through intestate succession. In other words, title passes to the
heirs at law as outlined in The Texas Probate Code. In the case of intestacy, Texas statutes
provide three options to evidence the passage of title to the decedent’s real property: (1) an
Affidavit of Heirship; (2) a Small Estate Affidavit; and (3) a Determination of Heirship.
A. Intestate Succession
Determining who inherits from an intestate decedent is not as simple as one might think.
It depends on (1) whether the decedent was married; (2) the type of property interest owned (i.e.
community v. separate; real v. personal); and (3) the date of death. TPC §§ 38, 45. Title to all
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property vests immediately upon death, so the heirs are determined by the law in force on the
date of death.
Included at Appendix “A” is a chart of intestate succession in Texas reflecting both
current and prior law applicable to community and separate real property in various
circumstances.
Effective September 1, 1993, Texas Probate Code § 45 provides that the community
property estate of one spouse passes to the surviving spouse if: (1) no child or other descendant
of the deceased spouse survives the deceased spouse; or (2) all surviving children and
descendants of the deceased spouse are also children or descendants of the surviving spouse. If a
decedent died before September 1, 1993, the prior law of community property applies: all of the
decedent's share of the community property passed to the children of the decedent or their
descendants.
As a practical matter, title insurance underwriters will usually take the most conservative
stance on whether property is community or separate, subject, of course, to satisfactory proof to
the contrary. Title insurance underwriters will try to make sure that the interests of all possible
owners are captured to avoid the most risk. The characterization of assets, whether community
or separate, is often an intricate process and that characterization may be revised as a result of a
premarital or marital agreement.
B. Affidavit of Heirship
The most cost effective and most commonly utilized tool in the title industry to determine
the heirs of a decedent in the case of intestacy, and to evidence the passage of title to real
property to those heirs, is the Affidavit of Heirship.
1. Generally. The procedure for an Affidavit of Heirship is found under TPC § 52.
In general the affidavit is a statement of facts concerning a family history, genealogy, marital
status and/or the identity of heirs of a decedent, executed and sworn to, and placed of record. It
is important to remember that liens against the heirs, as of the date of death, may and often do
attach to any real property inherited from the decedent when the property passes intestate.
2. The Form. A form for the Affidavit of Heirship is provided in TPC § 52A. The
form is not mandatory; and as a practical matter, title insurance underwriters will rarely insure
unless far more detail is provided in the Affidavit of Heirship than suggested by statute because
of the risk inherent to the procedure. The Affidavit of Heirship does not obtain a presumption of
validity until it has been of public record for five or more years; any errors or omissions in such
statement do not affect the rights of any omitted heir or creditor. The Affidavit of Heirship is
truly a fact finding and risk management tool.
3. Underwriter Requirements. Because the Affidavit of Heirship is inexpensive and
practical, title insurance underwriters will generally accept it to determine the heirs at law of a
deceased property owner if certain requirements are met. Examples of Affidavits of Heirship
applicable to varying situations are included at Appendix “B.”
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Affiants - The affidavit should be executed by two (2) credible, disinterested persons as
well as one (1) interested person, usually a surviving spouse or other family member of
the deceased. A ‘disinterested person’ is an individual that does not inherit from the
deceased. The necessary information is normally obtained from a family member of the
deceased, but only one family member should execute the Affidavit. Although a
daughter-in-law or son-in-law does not technically inherit from the deceased, arguably
they are not truly disinterested and underwriters generally will not accept either as an
Affiant.
Time - The two disinterested persons must have known the deceased for at least ten (10)
years prior to the date of death of the deceased. In the event the Affidavit relates to more
than one deceased person, such as a husband and wife, or a parent and child, each
disinterested person must have been acquainted with each deceased person for at least ten
(10) years prior to such person’s date of death. In other words, if the Affidavit is for a
husband who died fifteen (15) years ago, and a wife that died recently, the disinterested
persons executing the Affidavit must have know the couple for at least twenty-five (25)
years in order to meet the requirement of having known the husband for at least ten (10)
years prior to his date of death.
Relationship - The relationship of each disinterested person as well as the time period of
their acquaintance with the deceased should be included in the Affidavit.
Details - Affidavit should set forth certain details relating to the deceased, such as date
and place of birth and death; number of marriages, with date and name of each spouse
and how and where each marriage occurred and terminated; the full name, birth date,
place of birth, name of other parent and, status of each child of the deceased; if any child
of the deceased has died, then information should be included as to place and date of the
child’s death and whether the deceased child has descendants. If such deceased child had
descendants, then all the same information is required for such deceased child as was
required for the decedent. Much of the above information is not required in the same
degree of detail by either the statutory form or the State Bar form.
Will - If the deceased had a will, a statement should be included as to whether an
administration of the estate or probate of the will has been accomplished or is pending or
contemplated. The original or a copy of the will and all codicils should be attached to the
Affidavit. Note, if an administration or probate proceeding is pending, a title insurance
underwriter will not rely upon an Affidavit of Heirship. Instead, a determination of heirs
should be made by the court in the pending proceeding.
Devisees to Sign - If the deceased had a will, title insurance underwriters usually require
that all devisees named in the will that are not also an heir at law of the deceased be
included in title to the property and join in the conveyance. Title insurance underwriters
want to avoid a future claim from a subsequent probate of deceased’s will by any such
devisee, which would cut the heirs at law out of title.
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4. Adoption and Adoption by Estoppel. One issue that is often overlooked in an
Affidavit of Heirship is that of the adopted persons. This can be an issue if the deceased is
adopted, if the deceased adopted a child, or if the deceased gave a child up for adoption.
(a) Adoption. In Texas, an adopted child is regarded as the child of the
parent(s) by adoption, the same as if such child was the natural child of such parent(s) by
adoption. The adopted child inherits from the parent(s) by adoption, and the parents by
adoption and their kin have the right to inherit from the adopted child, the same as a
natural child. TPC § 40. More importantly, not only does an adopted child and its
descendents inherit from and through its adopted parents, but also from its biological
parents. Note that natural parents have no right to inherit from or through the adopted
child, but the adopted child does inherit from and through his/her natural parents. In
addition, an individual adopted as an adult does not inherit from his/her biological parent,
nor do such biological parents inherit from the adopted adult. TPC § 40; Texas Family
Code § 162.50(e).
(b) Adoption by Estoppel (Equitable Adoption). Texas law recognizes an
informal adoption, also known as adoption by estoppel or equitable adoption. Adoption
by estoppel occurs when a child is brought into the home and treated as an adopted child
without the benefit of court adoption proceedings. When a non-adopted child was living
with the decedent and the decedent treated the child as his/her own, a question can arise
as to whether that child inherits. See Heien v. Crabtree, 369 S.W. 2d 28 (Tex. 1963). A
child adopted by estoppel may have the right to inherit from his “adoptive” parents. This
often happens when the decedent raised a grandchild in the decedent’s home.
(c) Impact on Affidavit of Heirship. It is important to identify adoptions and
adoptions by estoppel in an Affidavit of Heirship when expecting a title insurance
company to rely on the Affidavit and insure the conveyance.
If the deceased is adopted, this fact should merely be addressed in the Affidavit of
Heirship as an additional fact, following the date and place of birth. The
biological parents or siblings of the deceased may not inherit from the deceased.
If the deceased adopted a child, the Affidavit should address this and reflect if
such adoption was formal or informal. If by formal adoption, the information
should be included in the Affidavit when listing the children of the deceased,
since an adopted child inherits in the same manner as the natural born child. The
date and place of the adoption should be included with the date and place of birth
and name of the other parent, if any.
If the deceased raised a child in his or her home without a formal adoption, the
child should be included in the Affidavit as an heir and join in the conveyance.
Many title insurance underwriters and/or title companies will also require the
heirs to execute a distribution of proceeds agreement in order to eliminate any
question between the heirs as to ownership interest or distribution of proceeds.
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If the deceased gave up a child for adoption, this information must also be
included in the Affidavit of Heirship because an adopted child can inherit from
his biological parents as well as from his adopted parents. In the past, adoptions
were not usually discussed and most adoptions were closed, leaving no possibility
to trace a child placed for adoption.As times have changed, the topic is not as
taboo and is discussed more openly. Today, open adoptions are becoming more
common, making it possible to actually identify the adoptee. When requesting a
title company to rely on an Affidavit of Heirship when the identity of the adoptee
is known, the adoptee information must be included in such Affidavit, with
information regarding not only the birth but the adoption as well. A title company
will require the adoptee to join in the conveyance because under the law, he/she is
entitled to a full share of the proceeds. This highlights the issues involved when
the identity of the adoptee is unknown – an interest in the property may be un-
conveyed, thereby requiring a court determination of the heirs and a portion of the
proceeds placed with the registry of the court. With social mores having changed
with regard to adoptions, it may be time for the Texas legislature to address the
issue of adoptees inheriting through their biological parents.
5. Timing. Although it is not the standard practice, at least one title insurance
underwriter will not rely upon or accept an Affidavit of Heirship within two years of the date of
death of the record owner. This is due to the high risk involved in reliance upon a statement of
facts from an interested party. It is unclear to the authors why two years is the magic number
since an administration may be opened for four years following the date of death and a will may
be probated without an administration at any time, so long as one can overcome the requirements
in the Texas Probate Code. However, this requirement forces a probate proceeding of some sort
in order to convey real property within two years of the date of death of the property owner.
While this will lessen the risk on the title company insuring the transaction, it seems to place a
heavy burden on the heirs of the deceased owner.
C. Small Estate Affidavit
1. Generally. The Texas Probate Code provides another option to evidence the
passage of title to decedent’s real property: the Small Estate Affidavit. TPC §§ 137 – 143. The
Small Estate Affidavit is available when a deceased’s estate, excluding homestead, does not
exceed $50,000.00; no formal administration of the estate is pending; and at least thirty days
have lapsed since the date of death. No personal representative is appointed and an Affidavit of
Heirship is filed with the clerk of the proper court for approval. This Affidavit must be made by
two disinterested witnesses, by all distributes having legal capacity, and by the guardian or next
of kin of any minor or other distributee not having capacity to sign. The Affidavit is to set out
the assets and liabilities of the small estate as well as the names and addresses of all distributees.
In addition, information as to the family history relating to heirship is to be included. TPC §
137.
2. Passes Homestead Property Only. A Small Estate Affidavit has limitations in use
to evidence the chain of title. It only passes title to the homestead property of the decedent; it
does not transfer title to any other real property of the Deceased. To pass title, the Small Estate
Affidavit must, following approval by the court, be recorded in the deed records of the county in
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which said homestead property is located. Furthermore, although this recorded Affidavit may be
relied upon by a bona fide purchaser for value without actual or constructive notice of an
undisclosed heir in taking title to property free of any claims of such undisclosed heir; such bona
fide purchaser takes title subject to any claims of creditors of the Deceased. TPC § 137(c).
3. Inherent Risks. On the surface, these provisions appear to provide for a shortcut
heirship determination upon which purchasers and title insurers may comfortably rely. However,
there are inherent risks in relying upon a Small Estate Affidavit when insuring a conveyance.
most Small Estate Affidavits do not meet the requirements of an Heirship Affidavit as set
out above. Because there is no statutory requirement that the disinterested witnesses have
known the deceased for any length of time, they have usually known the deceased for less
than ten (10) years.
the family or heirship information is usually not as comprehensive as needed for title
insurance purposes.
only property which was the homestead of the deceased is transferred by a Small Estate
Affidavit. Homestead property is not always easy to determine, especially after the
owner’s death.
For these reasons, title insurance underwriters rarely rely upon small estate proceedings to
convey title, unless, in those rare instances, the Small Estate Affidavit meets all the title
insurance underwriter’s requirements of an Affidavit of Heirship.
D. Judicial Determination of Heirship
If a decedent dies intestate, the Texas Probate Code offers a third alternative to determine
a decedent’s heirs at law and to evidence the passage of title to decedent’s real property: a
Determination of Heirship proceeding. TPC §§ 48, 49, 50, 53, 54, 55, 56. This alternative is
available regardless of the size, nature, extent or value of the probate estate. The Determination
of Heirship proceeding can be a stand-alone proceeding if there is no apparent need for formal
administration of the decedent’s estate. TPC § 55(c). Otherwise, a Determination of Heirship
can be a motion filed within a formal administration. Either way, because this proceeding
involves a judicial determination, it is a lengthier process and is more expensive than other
alternatives. Title insurance underwriters certainly would rather rely on Judicial Determinations
of Heirships rather than the alternatives because of the decreased risk, but Determinations of
Hierships are rarely seen outside of a formal administration of an estate.
1. Generally. An heir, administrator, secured creditor, guardian or other interested
party may initiate an action to declare heirship by: (i) filing an application to determine heirship;
(ii) having citation issued; and (iii) scheduling a hearing no sooner than the first Monday
following the passage of 10 days after citation is completed. TPC § 49 A judgment determining
the heirs of a decedent is part of the county’s probate records and, therefore, part of the
muniment records and constitutes the link in the chain of title from the decedent into the heirs at
law. TPC § 54. It is helpful but not necessary to file certified copies of the judgment in the deed
records of all counties in which decedent’s real property is located. TPC § 56. Filing the
judgment in the real property records constitutes constructive notice and allows for an
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expeditiously insured title transfer by a title company. A sample Application to Determine and
Declare Heirship is included at Appendix “C”.
2. Finding of No Administration. When the heirs at law can establish, prior to the
opening of formal administration, that there are no unpaid debts owed by the estate and there is
no other reason for formal administration of the estate, (i.e. heirs advance their own funds, or
have access to funds, to pay funeral expenses, expenses of last illness, etc.), the court can make a
finding that there is no necessity for administration. There is then no need for the appointment of
a personal representative of the estate and no letters of administration issue. The recital in the
order that no administration is necessary is the authority for all persons to deal directly with the
heirs on all matters relating to the real property. The Judgment Declaring Heirship included at
Appendix “D” contains a finding that there is no necessity for administration.
3. Venue. Venue is proper in the county of the decedent’s domicile or if the
decedent had no domicile or fixed place of residence in Texas, and died outside of Texas, then in
any county in Texas where the decedent’s nearest of kin resides. TPC § 6 C.
4. Parties. Remember that in order to gain the protection against the claims of
unknown creditors as well as protection against the claims of unknown heirs, all heirs and
beneficiaries must be joined in the proceeding. The heirs and beneficiaries must either (i) be
made a party to the application; (ii) be properly served by citation; (iii) file waivers of service of
citation; or (iv) file an answer to the application. If an heir or beneficiary cannot be located, then
a citation by publication should be issued, directed to the heirs whose names and whereabouts
are unknown. In addition, an attorney ad litem should be appointed to represent such heirs. The
appointment of the attorney ad litem for unknown heirs is mandatory. TPC § 53(c). Texas
Probate Code § 50 permits service of citation on known heirs who are twelve and older by
certified mail, but caution should be used and every effort should be made to provide everyone
with actual notice of the proceeding.
5. Practical Application. There several situations in which a Judicial Determination
of Heirship is helpful to the real estate and title professionals in order to determine the heirs at
law and evidence passage of title to real property:
When all of the heirs of the decedent cannot be identified. If the decedent was not
married at the time of death, and left no children, and no siblings, and no surviving
parents, or one of the parents cannot be located, the heirs at law are the paternal kindred
and maternal kindred. Tracing distant relatives is not always easy, and can prove at times
to be as time consuming and expensive as a Judicial Determination of Heirship and Order
of No Administration. Unfortunately, this seems to occur more frequently in the
underprivileged parts of cities, where property values are low and means to pay for the
remedy are scarce.
When Title Insurance Underwriting Requirements for an Affidavit of Heirship cannot be
met. Because title insurance underwriters require additional information in an Affidavit
of Heirship due to the inherent risk of the tool, sometimes those requirements cannot be
met. For example, if it is not possible to locate two affiants that knew the Decent more
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than ten (10) years prior to the date of death, a title insurance underwriter might not be
willing to take the risk and insure without a judicial determination of the heirs.
When a Will has been offered for Probate but the Will fails to Dispose of all of the
Property. The best example of this is when there is no residuary clause in the will that is
offered for Probate. Once probate proceedings have begun, it is unlikely that a title
insurance underwriter will accept an Affidavit of Heirship to identify the possible
devisees under the will. Likewise, you should not rely solely on the power of sale in the
will when insuring the transaction without identifying the devisees and conducting a
search on each devisee for possible liens that will attach to the devisee’s interest in the
real property.
Decedent died with a will, but the will fails to identify all of the devisees. Again, we are
dealing with a poorly written will, one that might refer to the devisees as “all of my
children”, “my grandchildren”, or “my heirs at law” without specifically identifying those
individuals. When the Will is probated, but the devisees named therein are not clearly
identifiable, most title insurance underwriters will require a determination of heirship
within that existing probate cause of action.
6. Other Applications. The Judicial Determination of Heirship is also available in
other situations:
Decedent died intestate, and there is need for administration of the estate. As of
September 1, 2011, a proceeding to declare heirship is statutorily required in an intestate
administration, although as a practical matter, many judges have been requiring it for
some time. TPC § 145. In situations where there are unpaid debts of the estate or some
other reason for formal administration, a Judicial Determination of Heirship cannot be
avoided.
More than four years have lapsed since decedent’s death. If more than four years have
lapsed since the date of decedent’s death, formal administration of the estate normally
cannot be opened. TPC § 74. However, the Texas Probate Code does not set limits on
initiating a proceeding to declare heirship. If this option is chosen, note that there are
some cases that suggest that the four-year statue of limitations of the Texas Civil Practice
and Remedies Code is applicable. See Smith v. Little, 903 S.W.2d 780 Tex. App.—Dalls
1995), Aff’d in part, rev’d in part on other grounds 943 S.W.2d 414 (Tex. 1997), and
Cantu v. Sapenter, 937 S.W.2d 550 (Tex. App.—San Antonio 1996, writ denied). York
v. Flowers, 872 S.W.2d 13 (Tex. App.—San Antonio 1994, writ denied) held that the
four-year statute does not apply to the heirs’ action to recover real property. Again, most
title insurance underwriters will rely on an Affidavit of Heirship for conveyance of real
property, eliminating the need for a judicial determination in many instances, unless there
is another reason for the determination, such as the need to transfer personal property.
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IV. WHERE THERE’S A WILL, THERE’S A WAY – EVEN IF DECEDENT DIED
OVER FOUR YEARS AGO
If a decedent leaves a will but four years have lapsed since the date of decedent’s death, a
full probate proceeding is not available. Of course, title companies would accept an Affidavit of
Heirship in proper form to evidence the passage of title to the heirs at law. But what if the
distributees under the will are not the same as the heirs at law? Take for example a decedent
who was married at the time of his death and had children from a prior marriage. If decedent
leaves everything to his wife in the will, but she fails to probate the will, thinking, “everything is
mine anyway,” the heirs at law are the owners of one-half of the community homestead. Years
later, when the widow attempts to sell the homestead property, the children will be required to
join in the sale of the property unless the parties can work out an amicable solution. Otherwise,
the will must be offered for probate for documentary evidence of title only, so long as the
applicant is not in default in failing to probate the will the required time period.
A. Probate Proceedings Must be Initiated Within Four Years.
All applications for letters testamentary or administration must be filed within four years
after the decedent’s date of death, except where administration is necessary in order to receive
funds or other property due to the estate. TPC § 74. If the applicant provides the court with
proof that the applicant is not in default in failing to present the will for probate within the four-
year period, the will can be admitted but in no case shall letters testamentary be issued. TPC §
73(a). In this case, “default” means a failure due to the absence of reasonable diligence on the
part of the will proponent. See Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App.—Tyler 1974, no
writ). If the applicant can meet this burden of proof, the will may be admitted to probate only as
a muniment of title. TPC § 73(a).
B. Muniment of Title.
1. Generally. A decedent’s will can be offered for probate as a muniment of title
when there are no unpaid debts owed by the decedent’s estate, except for those that are secured
by real property, or no other reason for administration of the estate. The court can make a
finding that there is no need for administration of the estate and admit the will to probate as a
muniment of title only. The will is probated just as any other will is probated, but the court does
not appoint an executor or administrator, and there is no administration of the estate, i.e. no
notice to creditors, inventory, etc. If needed, and on proper application, the court may include a
declaratory judgment construing the will or determining the identities of the persons entitled to
receive property and their shares of the estate. TPC § 89C(b). 2011 legislative changes make it
clear that TPC § 128a Notices do not apply to muniments of title.
Probate of a will as a muniment of title is the fastest proceeding through which to transfer
ownership of the estate to the beneficiaries, with vesting of such title relating back to the date of
death of the decedent. A sample Application for Probate of Will as a Muniment of Title when
four years have lapsed from the Decedent’s death is included at Appendix “E”.
2. Finding of “No Default.” Even though TPC § 89B of the Probate Code requires
that an application for muniment of title to be filed within four years of the date of decedent’s
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death, a court can admit the will to probate as a muniment if the applicant is not in default for
failing to file the application within four years. The court must make a finding of “no default.”
Cases when courts admit wills to probate after four years usually involve particular fact patterns
such as (a) the will was lost, undiscovered or concealed from the will proponent; (b) the will is
offered for probate to establish a link in the chain of title; or (c) an agreement was made among
the heirs not to probate the will. See Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San
Antonio 1978, writ ref’d n.r.e.); see also Estate of McGrew, 906 S.W.2d 53 (Tex. App.—Tyler
1995, writ denied).A sample Order Admitting Will to Probate as a Muniment of Title that
includes a finding of “no default” is included at Appendix “F”.
As a practical matter, the easiest way for a judge to find “no default” is when the
applicant is the buyer of the real property owned by the decedent. The applicant buyer is not in
default for failing to bring forth a will within four years of the decedent’s death because the
buyer never had possession of the will, and the buyer is offering the will for probate to establish
a link in the chain of title so that the buyer can purchase the real property. Judges are also
willing to find “no default” when a child of the decedent offers the will for probate when the will
had been in the possession of the decedent’s spouse and was only just discovered by the children
after that parent passed away.
3. Section 128B Notice to Potential Intestate Heirs. When filing a will for probate
as a muniment of title more than four years after a decedent’s death, the applicant must either:
(a) file with the court an affidavit signed by the decedent’s potential heirs at
law stating that the heirs do not object to the offer of the testator’s will for probate TPC §
128B(b); or
(b) give notice by service of process to the decedent’s potential intestate heirs
whose address can be ascertained by the applicant with reasonable diligence. The notice
must be given before the will is probated. TPC § 128B(a).
The notice and the affidavit must also contain a statement that:
(1) the testator’s property will pass to the testator’s heirs if the will is not admitted
to probate; and
(2) the person offering the testator’s will for probate may not be in default for
failing to present the will for probate during the four-year period immediately following
the testator’s death.
TPC § 128B(c). A sample TPC §128B Notice and a sample TPC §128B Affidavit can be found
at Appendix “G” and “H”. The Judges in Tarrant County prefer that the TPC § 128B Affidavit
be specific and contain as much detail about the decedent and the family as possible, especially
when the buyer of the real property is the applicant.
If the applicant is unable to ascertain the last known address of any of the decedent’s
heirs at law, Section 128B(d) requires the court to appoint an attorney ad litem to protect the
interests of the unknown heirs. This seems to happen more than one might think; for example, if
one of the family members have moved away and the family has not stayed in communication.
11
An ad litem appointment is expensive, but sometimes it is the only way to clear title when more
than four years have passed since the deceased passed away.
Although wills may be probated as muniments of title within four years from the date of
death, thereby providing a less expensive alternative when no administration is necessary, TPC §
89A is also an important tool to resolve title issues, sometimes offering the only solution
available to clear title to real property when four years have lapsed since the date of death.
V. PERSONAL REPRESENTATIVES AND THE AWESOME POWER OF SALE
There are times when a decedent leaves a valid will but there is no provision in that will
granting the executor the power to sell real property, or perhaps that grant of power is not
adequate. For example, instead of the will granting the executor the power to sell “all my
assets,” or “all my property, or “all my real property”, or even “all powers given to a trustee
under the Texas Trust Code”, the will merely grants the executor “all powers given to executors
under Texas law,” or “the power to sell 1234 Merry Jane Way” when the property in the estate is
5678 Doubting Joe Lane.
A. Powers of Representatives
Independent and dependent representatives generally have the same basic duties and have
similar powers. They have the duty to handle property of the estate as a prudent person would
take care of his or her own property. TPC § 230. The difference is how they are able to exercise
their powers to carry out that duty. Independent representatives can exercise his or her powers
nearly free from court supervision and control. TPC § 145(b). This can occur when a decedent’s
will provides for the independent powers, or when the court orders independent powers after
consent from all of the heirs. TPC §§ 145(c), (f). Dependent representatives, on the other hand,
must seek court approval before exercising most of their powers.
B. Power of Sale Granted in the Will
An independent executor is a personal representative designated as such in a decedent’s
will and appointed by the court at the time the will is admitted to probate. TPC § 76. In contrast,
an independent administrator is a personal representative appointed by the court when either the
will does not appoint a personal representative or the independent executor designated in the will
has died or is unable to act and no successors are designated. TPC § 76. Generally, the power to
sell property is not a power of an independent administrator. TPC § 331. There are two
exceptions: (i) if the sale is to pay the debts and/or expenses of the estate, or (ii) if the court has
authorized such sale. When the will contains adequate language authorizing an independent
executor to sell real property, the independent executor is authorized to sell real property without
any approval from the court. TPC § 332. Remember that the devisees under the will are the
owners of the real property, not the personal representative, and, unless the independent executor
is given the power of sale, the owners of the real property must join in any conveyance. All of a
decedent’s estate vests immediately upon time of death in the heirs at law, or in the devisees
under a will, not in the personal representative. TPC § 37.
12
C. Power of Sale Necessary to Pay Expenses
Even when a decedent’s will does not grant the representative the power of sale, the
representative has the authority to sell assets of the estate without court order when it is
necessary in the administration of the estate. Items deemed necessary for administration of the
estate include: to pay expenses of administration; funeral expenses; expenses of last illness; or in
the best interest of the estate. TPC § 145 (h). If there is a question as to whether the sale is
necessary in the administration of the estate, the representative could consider initiating a
declaratory judgment proceeding to determine if necessity exists, or the representative may apply
to the court under Section 341 of the Probate Code. The procedure for selling real property
under Section 341 of the Probate Code is discussed elsewhere in this paper.
As a practical matter, in the past title insurance companies have insured sales of real
property out of estates to pay expenses short of a court order when no liquid assets remain in the
estate, only the real property. Section 322B of the Probate Code delineates the order that assets
are sold in an administration to satisfy debts; real estate is near the bottom of the list. Title
insurance underwriters will follow this hierarchy and require review of the inventory and claims
and a list of debts of the estate in making its determination to insure the transaction. If there are
assets other than the real property, the title insurance underwriter will usually require a court
order to sell. If the only asset left in the estate is the house, it is usually the lawyer that has not
been paid, and the title insurance underwriter may not insure the transaction without a court
order unless all devisees join in the conveyance. It is usually the case in these instances that the
personal representative cannot obtain the approval of the devisees for various reasons, such as
one is a minor or the devisee assumes the attitude of “why should I because I am not going to get
anything.”
D. Power of Sale by Agreement.
The 82nd Texas Legislature passed SB 1198 that added, among other provisions,
Sections 145A, 145B and 145C to the Texas Probate Code relating to the power of sale. These
changes apply only where the date of death is on or after September 1, 2011. A full text of these
sections may be found at Appendix “I”.
1. 2011 Legislative Changes. In essence, the new code provisions attempt to grant
some representatives the power of sale when it is not there otherwise. Section 145A of the
Probate Code attempts to permit distributees to agree to grant the power of sale to a Section 145
independent executor appointed when a decedent does not have a will or when a decedent has a
will but it does not grant the executor the power of sale. The distributees’ consent must be
obtained before the Section 145 independent executor is appointed. The beneficiaries who are to
receive any interest in the real property must consent “in the application for independent
administration or in their consents to the independent administration.” TPC § 145A. Once the
order is entered containing the power of sale, the independent executor under Section 145
apparently needs no further consent of the beneficiaries to sell real property.
Section 145B does not appear to add anything new to the power of sale but seems to try
to restate existing law: except as provided otherwise, an independent executor, acting without a
13
court order, may take any action that a personal representative subject to court supervision may
take with or without a court.
Section 145C appears to permit an independent executor and an independent
administrator to sell real property without court approval once the Order grants the power of sale.
Section 145C(a) distinctly states that within this section “ ‘independent executor’ does not
include an independent administrator,” but continues throughout the section to never mention
one type of representative without mentioning the other type of representative.
2. Practitioners Eager to Rely on the 2011 Legislation. Probate attorneys seem eager
to rely on the new provisions because many believe that the provisions could make things easier
when there is no power of sale in the will, and especially when there is no will. In this sense,
easier means that all distributees might not have to join in the sale of the property (even though
the distributees consented in the application for the independent administration or in their
consents to the independent administration). It does nothing to make it easier to avoid liens
against the heirs. Even under the new statute, involuntary liens against the devisees cannot be
avoided. Title vests in the devisees as of the date of death. These liens must still be dealt with
prior to any conveyance, whether by a personal representative acting alone through a power of
sale, or with all devisees joining in the conveyance. Only if the sale is accomplished following a
court order approving the sale or if the sale is to pay for the debts of the estate may any such
liens against the devisees be ignored.
3. Title Insurance Underwriters Appear Hesitant.
(a) Statute Unclear on Its Face. Title insurance underwriters seem hesitant to
rely on the power of sale under this new legislation. They may hesitate because the
statute is so new, or because the statute seems poorly written to the non-probate
practitioners. The statute does not simply state that an independent executor or an
independent administrator has the power to sell real property if the distributees agree in
the application first filed with the court and if the power to sell is included in the order
appointing the executor or administrator. Instead, the statute is confusing and difficult to
interpret. Take for example, the situation as contemplated under Section 145A when
there is no will. In instances when there is no will and there is an administration, the
representative, whether independent or not, is referred to as an administrator, not as an
executor. TPC § 76. Section 145A allows a court to “include in an order appointing an
independent executor under Section 145 of this code… .” Does this now mean an Order
appointing an administrator when there is no will must have the heading “Order
Appointing Executor Under Section 145” or was ‘executor’ used as a generic term like
‘representative’? Recent title insurance underwriting bulletins do not provide guidance
but are mere recitals of the statute.
At least one underwriter is willing to insure “a sale of real property by the
executor/administrator when the power of sale is contained in the Order Appointing the
Executor.” This underwriter does not seem to mind or even acknowledge that usually there is no
Order Appointing Executor when there is no will, but instead an order Appointing Administrator.
14
(b) Concern of Attack by Creditor of Estate. Other title insurance
underwriters have addressed concerns about the ability of creditors of the estate to attack
the sale. They seem to argue that Section 145C(c) specifically protects good faith arms’
length purchasers from attacks on the sale by the devisees but does not protect all parties
from attacks on the sale or from claims by creditors of the estate. The argument is
reinforced by provisions in other parts of the Probate Code, such as Section 137(c)
dealing with Small Estate Affidavits. Section 137(c) provides that the recorded Small
Estate Affidavit may be relied upon by a bona fide purchaser for value without actual or
constructive notice of an undisclosed heir in taking title to homestead property free of any
claims of such undisclosed heir. However, such bona fide purchaser takes title subject to
any claims of creditors of the deceased. An equivalent provision is not in Section 145C,
but neither is the opposite: that a bona fide purchaser takes the property with a court
ordered power of sale free of the claims of creditors of the deceased. These title insurance
underwriters argue that an unpaid creditor of the estate may make a claim against the
property sold, resulting in a claim against the title policy issued pursuant to the sale. This
may result in a title insurer defending the conveyance by the independent executor and
any claim on a title policy is a net loss. Such concern may cause some title insurance
underwriters to refuse to rely upon the provisions of Section 145A unless it is used in
conjunction with a sale to pay debts of the estate.
Title insurance underwriters could also choose not to rely on the provisions of Section
145A without further consent or joinder of the heirs/devisees. To the title insurance
underwriters’ credit, if the heirs/devisees are available to consent to the power of sale at the time
of the application to probate the will and appointment of personal representative, why would
they not also be available to join in the conveyance? If the heirs/devisees can join in the deed,
then no consent is necessary and these provisions in Section 145 would not be needed.
VI. WHAT EXECUTOR? THAT EXECUTOR DIED YEARS AGO!
When an executor named in a will dies before the will is probated, or passes away after
being appointed by the court, Texas Probate Code § 145(d) and § 220 provide specific guidelines
so an alternate representative can be appointed and pave the way for the real estate closing. If an
executor passes away after court appointment, a prudent practitioner would have a successor
executor appointed under Section 220 and not a new administrator appointed under Section
145(d) of the Texas Probate Code because successor executors assume all of the rights, duties
and powers of the predecessor, which would include any power of sale or other powers contained
in the will. Arguably, the recent additions of Sections 145A, 145B and 145C to the Texas
Probate Code might make this distinction moot. Until the position that the title insurance
underwriters will take on the new legislation is determined, the best practice is to proceed under
TPC § 220 and seek a successor executor.
A. TPC § 145(d)- Appointment of Independent Administrator
If the will fails to name an executor, or names an executor who is dead or not competent
to serve and no alternate or successor executor is named, then the court may probate the will and
appoint an independent administrator “with will annexed.”
15
The independent administration may be created when all of the distributees of the
decedent agree on the advisability of an independent administration with a court-appointed
independent administrator in situations normally calling for an administration with will annexed.
Of course, there must be a need for administration. TPC § 145(d) and § 178(b). Legislation
effective September 1, 2011, added provisions to TPC § 145 allowing parents of minor children
and trustees to consent to independent administration by agreement when no conflicts exist.
A sample Application for Letter of Independent Administration is included at Appendix
“J”.
If an administration is already pending and the executor dies or resigns, TPC § 145(d)
also permits courts to appointment an administrator. The court must find that there is a
continuing need for administration of the estate. After an administrator with will annexed
applies to the court and qualifies, the administration proceeds in the same manner as in a regular
independent administration and the administrator is governed by the rules applicable to
administrations generally.
Note that even if the new administrator is appointed under TPC § 145(d) with will
annexed, an administrator does not have the power of sale contained in the will. TPC § 331 tells
us that, “Except as hereinafter provided, no sale of any property of an estate shall be made
without an order of the court authorizing the same.” There is no provision in the Texas Probate
Code, short of the new Sections 145A, 145B, and 145C, granting an independent administrator
the power of sale. TPC § 332 authorizes only an independent executor to sell property when
granted the power in the will.
So the question becomes, will courts consider an Application for Independent
Administrator under § 145(d) filed in an existing probate when the predecessor has died as one
that qualifies for the granting of the power of sale under TPC § 145A? More importantly, will
title insurance underwriters rely on such power when insuring a transaction?
B. TPC § 220 Appointment of Successor Representative
The court can appoint a successor representative if an appointed representative dies,
resigns, or is removed only if there is a showing that there is a continuing need for
administration. TPC § 220(a). Successors assume all of the rights, powers and duties of their
predecessors. TPC §§ 224-226. Successor executors have the power of sale if the predecessor
had the power of sale. TPC § 226. The appointment of a successor executor under this section as
opposed to Section 145(d) of the Texas Probate Code would eliminate a reliance on the new
Sections 145A, 145B, and 145C.
Although it is most common to see a successor representative appointed when the
successor representative is also listed as an alternate executor in the will, there is no requirement
under TPC § 220(a) that the successor representative be listed in the will in order to be
appointed. The following sample forms are included in Appendix at “K”:
Application for Appointment of Successor Independent Executrix and Issuance of New
Letters Testamentary in Accordance with § 220 of Texas Probate Code
16
Proof of Need for Continuation of Administration for the Estate
Appointment of Registered Agent
Oath of Successor Independent Executrix
Order Granting Application for Appointment of Successor Independent Executrix and
Issuance of New Letter Testamentary in Accordance with § 220 of Texas Probate Code
C. 2011 Legislative Changes Impacting Executors
Two recent changes to the Texas Probate Code are noteworthy to practitioners and
executors. The first change is to the required TPC § 128A Notices and has little impact on title
examination. In 2007, the Legislature amended TPC § 128A to require an executor, within 60
days from the date of the executor’s qualification, to provide notice of the probate proceeding to
the beneficiaries under a will. There was quite a bit of confusion surrounding the 2007
modifications, so the 2011 Legislature attempted to simplify the TPC § 128A notice
requirements, effective September 1, 2011. The changes make it clear, for example, that a
beneficiary under a contingency that has not occurred at the time of the decedent’s death is not
entitled to TPC § 128A notice (TPC § 128A(a)), nor is a beneficiary who receives only nominal
gifts (TPC § 128A(d)(2)), or whose gifts have already been satisfied by the time the notice would
otherwise be given (TPC § 128A(d)(3)). In addition, the changes allow the executor to provide a
written summary of the gifts to the beneficiary, in lieu of a full copy of the will. TPC §
128A(e)(6).
The second change concerns TPC § 250 and might have more of an impact on title
insurers in their examination of probate proceedings. The change to TPC § 250 permits
independent executors or administrators to file an affidavit in lieu of an inventory when no debts
remain by the inventory due date. TPC § 250(c). The affidavit has to merely state that no debts
remain. The independent executor or administrator must still prepare a sworn inventory and
provide a copy to all beneficiaries other than those receiving specific gifts. The changes also
allow an intestate heir, or beneficiary under a prior will, to receive a copy of the inventory upon
written request. TPC § 250(e)(1).
Many of the existing wills provide for independent administration with language such as
“No action shall be required in any court... in relation to the settlement of my estate other than
the return of an inventory and list of claims of my estate… .” This language is derived from TPC
§ 145(b). Some might argue that an inventory is still required in these circumstances. For the
practitioner, the new TPC § 250 perhaps justifies a change adding “if required by law” to the end
of that sentence in the will. For the title insurers, the changes to TPC § 250 might alter their
examination of probate proceedings. Many title examiners review the inventory in an estate to
determine the possibility of federal or state estate tax liens due to the value of the assets in the
estate. When no inventory is available, most companies require and accept an affidavit from the
personal representative to the effect that no debts or estate taxes are due, or if such are owed,
there exist sufficient assets in the estate to pay such debts and taxes and/or that such debts or
taxes will be paid from the proceeds of the insured transaction. If an affidavit pursuant to TPC §
250 is used, it is likely title insures will require the estate tax lien affidavit more frequently.
17
VII. BUT ALL THE HEIRS AGREE! WHY DOES THE DEPENDENT
ADMINISTRATOR HAVE TO OBTAIN COURT APPROVAL TO SELL THE
REAL PROPERTY?
A personal representative, whether that person is an executor or an administrator, will
either be independent or dependent, depending on whether that person is subject to court
supervision. A personal representative is dependent if there is no will, or the will does not
provide for independent administration and the devisees cannot agree otherwise; or if the
personal representative wants to be dependent and be afforded the protections from liability that
comes with dependent administration. TPC §§ 81, 82. The personal representative of a
dependent estate must obtain court approval before taking most actions, including sales of real
property, payment of estate debts, expenditure of funds, distributions of assets, or any acts
obligating the estate. TPC § 234(a). A sale of real property will require the seller to take
additional steps and provide certain documentation to the court and to the title company, all
resulting in a longer time to close, and a higher cost.
A. Property Subject to Sale.
The Texas Probate Code describes the several categories of real property that are subject
to sale:
Property that is liable to perish, waste or deterioration, or that will constitute an expense
or disadvantage to the estate, must be promptly sold. TPC § 333.
If needed to pay expenses of administration, funeral, last illness, family allowances
against the estate. TPC §§ 334 and 341(1).
All property that cannot be partitioned among the heirs or paid in cash to the estate. TPC
§§ 381 and 427.
Realistically, any sale of real property can be characterized as falling into one of these
categories. Almost all real property can be described as deteriorating or causing expense to the
estate for maintenance, mowing, taxes, insurance etc. The applicant should state in the
application that the sale is in the best interest of the estate or is necessary. The process to sell
this property is a four-step process.
B. Four-Step Process for Sale: All Steps Completed Before Closing.
Generally, the sale of real property by a representative in a dependent administration
involves: the application for sale of real property; the order approving the sale; the report of
sale; and the order confirming the sale. All of these steps occur prior to a closing. Only after the
fourth step in the process (when the court confirms the particular contract for sale and the closing
statement etc.) can the representative of the estate proceed to closing and deliver the deed. TPC §
357. At closing, the deed shall refer to and identify the decree of the court confirming sale, the
last step in the four-step process. TPC § 356. A deed conforming to these procedures is prima
facie evidence that said sale met all applicable requirements of the law. Title insurance
underwriters will strictly abide by this four-step process because if the procedures are not
18
properly followed, the sale could be open to attack by persons interested in the estate. See Walker
v. Sharpe, 807 S.W.2d 448 (Tex. App.—Corpus Christi 1991, writ denied).
1. Step 1: Application for Sale of Real Property. A sample Application for Sale of
Real Property is included at Appendix “L”. The Application must: be in writing; describe the
property to be sold; contain a sworn detailed statement of the present condition of the estate; and
detail the facts that show a necessity or advisability for the sale. TPC § 342. The Application
should also state that the sale is in the best interest of the estate. Citation must issue and be
served by posting, and the citation must be posted for at least ten days before the court can act
upon the Application. A hearing is not required unless the Application is opposed. TPC § 345A.
2. Step 2: Order Permitting Sale of Real Property. A sample Order Permitting Sale
of Real Property is included at Appendix “M”. The Order authorizes the representative of the
estate to sell the property upon the terms contained in the Order. In other words, the Order of
Sale authorizes the representative to enter into a listing agreement, to solicit purchases, and to
enter into an equitable sale, i.e. a contract to sell the real property on the terms contained in the
Order. Until this Order is signed, the representative does not have the authority to bind the estate
in a contract to sell the real property. It is important to note that the Order Permitting Sale of
Real Property does not permit the representative to proceed to closing, but merely to solicit
offers and enter into a sales contract. A sales contract is an equitable sale of the property and this
is the ‘sale’ that the court authorizes. This is commonly misunderstood by both attorneys and
title companies.
The Order should find that citation was issued and served according to law; that the
verified affidavit met the requirements of the law; if a hearing was necessary; that the bond is
sufficient as required by law; whether the sale will be private or public on a certain day and time;
make a finding of best interest of the estate; that the sale is necessary and advisable, should
include a sufficient legal description of the property; and that the Report of Sale shall be filed
and returned in accordance with the law. TPC § 346.
3. Step 3: Report of Sale. Once the representative has entered into a contract with a
purchaser to sell the real property, the representative must report back to the court with the terms
of that equitable sale, and seek the court’s approval to convey legal title to the real property
according to the terms of the contract to that specific purchaser. A sample Report of Sale is
included at Appendix “N”.
The Report of Sale should contain all information regarding the equitable sale of the
property, i.e. the contract for sale, that the representative entered into with the purchaser. The
Report should include the legal description of the property; the date of the sale of the property
(the execution date of the sales contract); the name of the purchaser; the estimated net proceeds
to the estate; a statement on best interests and that the purchaser is ready to proceed to closing
and comply with the terms of the sale.Usually, the HUD Settlement statement is also attached to
the Report of Sale.
4. Step 4: Order Confirming Sale. Once the Report of Sale has been on file with the
court for at least five days, the court may consider it. TPC § 355. If the court is not satisfied that
the sale was for a fair price and was properly made, it must order that the sale be set aside and
19
order that a new sale be made if necessary. TPC § 355. A sample Order Confirming Sale is
included at Appendix “O”.
It is not until the court signs the Order Confirming Sale of Real Property that the
representative has the authority to convey legal title to the purchaser. Note also that the deed
signed at closing must refer to and identify the decree of the court confirming sale. Most title
companies will actually attach a copy of the signed Order Confirming Sale to the vesting deed.
Because the deed should not be dated and notarized before the order authorizing the
representative to convey legal title, it is a best practice not to close in escrow but wait for the
Order Confirming Sale to be signed. Instead, the closing should occur only after the court
authorizes the conveyance of legal title, and which is upon signing the Order Confirming Sale.
VIII. THE SELLER IS A MINOR
Generally speaking, minors can enter into contracts but those contracts are voidable by
the minor during his minority or within a reasonable time thereafter. A contract is not binding on
a minor merely because it is for the minor's benefit. In Texas, once the minor reaches the age of
18, he can convey legal title to real property. But before that time, the only alternatives are to (1)
enter into a full guardianship proceeding, which is cumbersome and expensive, or (2) proceed
under Section 889 of the Texas Probate Code whereby the court orders the sale of the minor’s
interest in real property. Many times, a full guardianship of the estate is not needed because the
minor inherits an undivided interest in real property intestate, and the property is the only asset
of the minor. In these instances, § 889 of the Texas Probate Code proves a better alternative to a
guardianship of the estate.
Note that TPC § 890 is virtually identical to TPC § 889 but is to be used in instances
where a ward has a guardianship of the person but no guardianship of the estate. There is no
requirement that the ward be a minor but the procedures are the same as those in TPC § 889.
A sample Application for § 889 Sale of Real Property of a Minor by An Adoptive Parent
is included at Appendix “P”. Basically, a natural or adoptive parent, or the managing
conservator, of a minor who is not a ward may apply to the court for an order to sell such
individual’s interest in real property, when the value of such interest is less than $100,000,
without being appointed as a guardian. The minor may not later disaffirm a sale of property sold
under a § 889 Order.
The Application must contain the legal description of the real property; the name of the
minor and the minor’s interest in the property; the name of the purchaser; that the sale is for
cash; and that all funds received shall be used for the benefit of the minor. TPC § 889 (b).
The court may issue citation if it feels it is necessary, and the court shall conduct a
hearing on the Application. TPC § 889 (c). As a practical matter, the court will want some
evidence, either in the Application or presented at the hearing as to the value of the property,
which may be proved by appraisal. The Court will also make certain that the sale is in the best
interest of the minor. TPC § 889 (d).
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It is important to note that the minor’s proceeds of sale must be deposited into the registry
of court. Most title companies will require that the Order specifically makes this finding. The
parent may then proceed under TPC § 887 to withdraw those funds from the registry.
IX. CONCLUSION
The death of an individual holding title to real property has a significant impact on real
estate transactions. Evidencing the chain of title, capturing all interests, and identifying liens
against heirs are just a few of the common issues encountered. Whether the death is recent, or
generations past, the death of a property owner alone should not cause the untimely death of the
deal.
Appendix “A”
Intestate Succession in Texas of Real Property
1/4 to
mother
1/2 to
surviving
spouse
1/4 to
father
D Dies PRIOR to 9/1/1993
Intestate Succession in Texas of Real Property
MARRIED WITH
NO CHILDREN OR THEIR
DESCENDANTS
COMMUNITY PROPERTY SEPARATE PROPERTY
All to
Surviving
Spouse
MARRIED WITH
CHILDREN
COMMUNITY PROPERTY
SEPARATE PROPERTY
MARRIED WITH
CHILDREN When All
Surviving Children &
Descendants are also
Children & Descendants
of Surviving Spouse
COMMUNITY PROPERTY
All to
Surviving
Spouse
D Dies AFTER 9/1/1993
MARRIED WITH
CHILDREN When All Surviving
Children & Descendants
NOT Child or Descendant
of Surviving Spouse
COMMUNITY PROPERTY
If only 1 parent survives,
(s)he takes 1/4 of RE & 1/4
divided b/t D’s siblings &
their heirs. If no siblings
or their heirs, then
surviving parent takes 1/2
of RE.
If neither parent
survives, 1/2 of RE equally
to D’s siblings & their
heirs; if none of them, all
to surviving spouse.
1/2
equally
divided
among
D’s
children
1/2
retained by
surviving
spouse
1/3 to
spouse
for life*
2/3
equally
divided
among
D’s
children
* To children &
their descendants
upon death of
surviving spouse
D Dies AFTER 9/1/1993
1/2
equally
divided
among
D’s
children
1/2
retained
by
surviving
spouse
Children of D’s children take their
parent’s share
TPC §38 (b) (1)
TPC §38 (b) (2) TPC §45 (a) (1)
TPC §45 (a) (2)
TPC §45 (b)
S. Frossard & J. Bailey
2011 TLTA Institute
Children of D’s children take their
parent’s share
Prior
TPC §45
Equally
divided
among
children
Intestate Succession in Texas
Real Property
Page 2
UNMARRIED WITH
CHILDREN
Children of deceased children
take their parent’s share
UNMARRIED WITH NO
CHILDREN & WITH
BOTH PARENTS
SURVIVING
Children of deceased children
take their parent’s share
UNMARRIED With
NO CHILDREN & With
MOTHER OR FATHER
AND SIBLING
SURVIVING
Children of deceased children
take their parent’s share
UNMARRIED WITH
NO CHILDREN,
NO SURVIVING PARENT, &
NO SURVIVING SIBLINGS OR
THEIR DESCENDANTS
1/2 to
Father 1/2 to
Mother
If no parent survives, siblings inherit everything. TPC §38 (a) (3).
If no siblings, the surviving parent inherits everything.
1/2
equally
to
siblings
1/2 to
Surviving
Mother or
Father
1/2 to
Paternal
Kindred
1/2 to
Maternal
Kindred
TPC §38 (a) (1)
TPC §38 (a) (2)
TPC §38 (a) (2)
TPC §38 (a) (4)
S. Frossard & J. Bailey
2011 TLTA Institute
APPENDIX B-1
------------------------------------------------------------[Space Above This Line For Recording Data]--------------------------------------------------------
-----
AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS
RE: ESTATE OF STARR G. DUVAL,
a/k/a STARR GLASSCOCK DUVAL, DECEASED
BEFORE ME, the undersigned authority, on this day personally appeared
KIMBELL D. KARNES,
JACK LIPSCOMB, and SCURRY LIPSCOMB,
("Affiants"), who, being first duly sworn, upon their oaths state:
1. a. “My name is KIMBELL D. KARNES, and I live at 1234 Pretend Street, Fort
Worth, Tarrant County, Texas 76109. I am the daughter of STARR G. DUVAL, a/k/a STARR
GLASSCOCK DUVAL, DECEASED ("Decedent"). I am personally familiar with the family
and marital history of Decedent, and I have personal knowledge of the facts stated in this
Affidavit.
b. “My name is JACK LIPSCOMB, and I live at 1236 Pretend Street, Fort Worth,
Tarrant County, Texas 76109. My relationship to Decedent was that of friend and neighbor. I am
personally familiar with the family and marital history of Decedent, and I have personal knowledge
of the facts stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled
to receive any part of Decedent’s estate according to the laws of descent and distribution of the
State of Texas. I knew Decedent from 1962 to 2011, being approximately Forty-nine (49) years.
c. “My name is SCURRY LIPSCOMB, and I live at 1236 Pretend Street, Fort
Worth, Tarrant County, Texas 76109. My relationship to Decedent was that of friend and
neighbor.I am personally familiar with the family and marital history of Decedent, and I have
personal knowledge of the facts stated in this affidavit. I have no interest in the Estate of Decedent
and I am not entitled to receive any part of Decedent’s estate according to the laws of descent and
distribution of the State of Texas. I knew Decedent from 1962 to 2011, being approximately Forty-
nine (49) years.
2. “Decedent was born STARR LOVING GLASSCOCK on October 31, 1919, in
Fayette, Fayette County, Idaho. Decedent died on June 12, 2011, at the age of 91 years. Decedent's
place of death was Happily Ever After Adult Care Home, 2512 Seaside Avenue, Portland,
Multnomah County, Oregon 97206. At the time of decedent's death, decedent's residence was 1234
Pretend Street, Fort Worth, Tarrant County, Texas 76109.
3. “Decedent's marital history was as follows: Decedent was married only once in her
lifetime, and that marriage was to TITUS WINKLER DUVAL in July, 1942, in Corpus Christi,
Nueces County, Texas; That TITUS WINKLER DUVAL died on September 17, 2007, in Fort
Worth, Tarrant County, Texas. [Note: An Affidavit of Facts Concerning the Identity of Heirs of
TITUS WINKLER DUVAL, Deceased, is being filed for record in the Office of the County Clerk
of Tarrant County, Texas, simultaneously herewith.] That Decedent never remarried after the death
of TITUS WINKLER DUVAL, Deceased.
4. ”Decedent had the following children:
a. Name: EARL PARKER DUVAL
Date of Birth: May 28, 1947
Name of Other Parent: Titus Winkler Duval
Current Address: 5464 Lots O’ Trees
Portland, Oregon 97202
b. Name: KIMBELL LOVING DUVAL KARNES
Date of Birth: October 31, 1949
Name of Other Parent: Titus Winkler Duval
Current Address: 1234 Pretend Street
Fort Worth, Texas 76109
5. Decedent did not have or adopt any other children and did not take any other
children into decedent's home or raise any other children, except: None.
6. Decedent left a written Will, which has not been and will not be probated,
Select one:
[ ] the original of which is attached hereto and incorporated herein
for all purposes.
[ ] a copy of which is attached hereto and incorporated herein
for all purposes.
7. There has been no administration of Decedent's estate, and none is expected.
8. Decedent left no debts that are unpaid, including expenses of her last illness and
funeral, except: None.
9. There are no unpaid estate or inheritance taxes, except: None.
10. To the best of Affiant’s knowledge, Decedent owned an interest in the following real
property:
Lot 8, Block 35, Castle Crossroads, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to plat recorded in Volume 388-721, Page 616, Deed
Records of Tarrant County, Texas.
Property Address: 1234 Pretend Street,Fort Worth, Texas 76109
By deed from ARCHER HOCKLEY BUILDERS, INC. to TITUS WINKLER
DUVAL and wife, STARR G. DUVAL, dated March 2, 1962, recorded in Volume
3672, Page 230, Deed Records of Tarrant County, Texas.
11. This Affidavit is made for the purpose of placing evidence of record so that the heirs
at law of the said STARR G. DUVAL, a/k/a STARR GLASSCOCK DUVAL, Deceased, can be
determined. Affiant(s) also state that the facts are made of their own personal knowledge and
they are true and correct.
FURTHER AFFIANT(S) SAITH NOT.”
KIMBELL D. KARNES, “Affiant”
JACK LIPSCOMB, “Affiant”
SCURRY LIPSCOMB, “Affiant”
(Combined Jurat and Acknowledgment)
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was SUBSCRIBED AND SWORN TO AND ACKNOWLEDGED before
me on the ___ day of ______________, 20____, by KIMBELL D. KARNES.
[Notary Seal]
Notary Public, State of Texas
Notary’s commission expires:
(Combined Jurat and Acknowledgment)
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was SUBSCRIBED AND SWORN TO AND ACKNOWLEDGED before
me on the ____ day of _________________, 20____, by JACK LIPSOOMP and SCURRY
LIPSOMB.
[Notary Seal]
Notary Public, State of Texas
Notary’s commission expires:
AFTER RECORDING, RETURN TO:
APPENDIX B-2
------------------------------------------------------------[Space Above This Line For Recording Data]------------------------------------------------------------
-
AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS
RE: ESTATE OF STARR GLASSCOCK DUVAL, DECEASED
BEFORE ME, the undersigned authority, on this day personally appeared
TITUS WINKLER DUVAL,
JACK LIPSCOMB and SCURRY LIPSCOMB,
("Affiants"), who, being first duly sworn, upon their oaths state:
1. a. “My name is TITUS WINKLER DUVAL, and I live at 2010 Corey Castle
Court, Arlington, Tarrant County, Texas 76012. I am the surviving spouse of STARR
GLASSCOCK DUVAL, DECEASED ("Decedent"). I am personally familiar with the family
and marital history of Decedent, and I have personal knowledge of the facts stated in this
Affidavit.
b. “My name is JACK LIPSCOMB, and I live at 1201 Beaconlight Lane, Arlington,
Tarrant County, Texas 76011. My relationship to Decedent was that of friend. I am personally
familiar with the family and marital history of Decedent, and I have personal knowledge of the facts
stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled to receive
any part of Decedent’s estate according to the laws of descent and distribution of the State of Texas.
I knew Decedent from 1982 to 2007, being approximately Twenty-five (25) years.
c. “My name is SCURRY LIPSCOMB, and I live at 201 Woodiest Drive, Arlington,
Tarrant County, Texas 76012. My relationship to Decedent was that of friend. I am personally
familiar with the family and marital history of Decedent, and I have personal knowledge of the facts
stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled to receive
any part of Decedent’s estate according to the laws of descent and distribution of the State of Texas.
I knew Decedent from 1995 to 2007, being approximately Twelve (12) years.
2. “Decedent was born STARR LOVING GLASSCOCK on October 3, 1957, in Fort
Worth, Tarrant County, Texas. Decedent died on March 24, 2007, at the age of 49 years.
Decedent's place of death was Arlington Memorial Hospital, Arlington, Tarrant County, Texas. At
the time of decedent's death, decedent's residence was 2010 Corey Castle Court, Arlington, Tarrant
County, Texas 76012.
3. “Decedent's marital history was as follows: Decedent was married only once in her
lifetime, and that marriage was to TITUS WINKLER DUVAL on November 6, 1981, at United
Methodist Church, in Arlington, Tarrant County, Texas, and that they were still married at the time
of her demise.
5. ”Decedent had the following child:
Name: EARL PARKER DUVAL
Date of Birth: December 10, 1983
Name of Other Parent: Titus Winkler Duval
Current Address: 600 Mountain Cove
Austin, Texas 78730
5. Decedent did not have or adopt any other children and did not take any other
children into decedent's home or raise any other children, except: None.
6. Decedent died without leaving a written Will.
7. There has been no administration of Decedent's estate, and none is expected.
8. Decedent left no debts that are unpaid, including expenses of her last illness and
funeral, except: None.
9. There are no unpaid estate or inheritance taxes, except: None.
10. To the best of Affiant’s knowledge, Decedent owned an interest in the following real
property:
Lot 11, Block 12, EASTERN SHIRE, an Addition to the City of Arlington, Tarrant
County, Texas, according to plat recorded in Cabinet A, Slide 65, Deed Records of
Tarrant County, Texas.
Property Address:2010 Corey Castle Court, Arlington, Texas 76012
By deed from CHICO GRUENE and wife, FRIO GRUENE to TITUS WINKLER DUVAL
and wife, STARR GLASSCOCK DUVAL, dated August 2, 2000, recorded in Volume
17658, Page 213, Deed Records of Tarrant County, Texas.
11. This Affidavit is made for the purpose of placing evidence of record so that the heirs
at law of the said STARR GLASSCOCK DUVAL, Deceased, can be determined. Affiant(s) also
state that the facts are made of their own personal knowledge and they are true and correct.
FURTHER AFFIANT(S) SAITH NOT.”
TITUS WINKLER DUVAL, “Affiant”
JACK LIPSCOMB, “Affiant”
SCURRY LIPSCOMB, “Affiant”
(Insert Combined Jurat and Acknowledgment)
APPENDIX B-3
------------------------------------------------------------[Space Above This Line For Recording Data]------------------------------------------------------------
-
AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS
RE: ESTATE OF STARR G. DUVAL, DECEASED
BEFORE ME, the undersigned authority, on this day personally appeared
TITUS W. DUVAL,
JACK LIPSCOMB and SCURRY LIPSCOMB,
("Affiants"), who, being first duly sworn, upon their oaths state:
1. a. “My name is TITUS W. DUVAL, and I live at 1643 Bearcat Drive, Mansfield,
Tarrant County, Texas 76063. I am the surviving spouse of STARR G. DUVAL, DECEASED
("Decedent"). I am personally familiar with the family and marital history of Decedent, and I
have personal knowledge of the facts stated in this Affidavit.
b. “My name is JACK LIPSCOMB, and I live at 1026 Championship Drive,
Kennedale, Tarrant County, Texas 76060. My relationship to Decedent was that of friend. I am
personally familiar with the family and marital history of Decedent, and I have personal knowledge
of the facts stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled
to receive any part of Decedent’s estate according to the laws of descent and distribution of the
State of Texas. I knew Decedent from 1981 to 2001, being approximately Twenty (20) years.
c. “My name is SCURRY LIPSCOMB, and I live at 1026 Championship Drive,
Kennedale, Tarrant County, Texas 76060. My relationship to Decedent was that of friend. I am
personally familiar with the family and marital history of Decedent, and I have personal knowledge
of the facts stated in this affidavit. I have no interest in the Estate of Decedent and I am not entitled
to receive any part of Decedent’s estate according to the laws of descent and distribution of the
State of Texas. I knew Decedent from 1981 to 2001, being approximately Twenty (20) years.
2. “Decedent was born STARR LOVING GLASSCOCK on October 13, 1922, in
Pottawanamee County, Oklahoma. Decedent died on May 11, 2001, at the age of 78 years.
Decedent's place of death was 3323 JayGray Road, Arlington, Tarrant County, Texas 76017. At
the time of decedent's death, decedent's residence was 3323 JayGray Road, Arlington, Tarrant
County, Texas 76017.
3. “Decedent's marital history was as follows: Decedent was married three (3) times
during her lifetime.
a. Decedent’s first marriage was to Terrell Swisher in Tulsa, Tulsa County,
Oklahoma in the year 1940; Decedent’s first marriage was dissolved by
divorce in Tulsa, Tulsa County, Oklahoma in the year 1942;
b. Decedent’s second marriage was to Jeff Davis in Tulsa, Tulsa County,
Oklahoma in the year 1947; Decedent’s second marriage was dissolved by
divorce in Tulsa, Tulsa County, Oklahoma in the year 1955;
c. Decedent’s third marriage was to Titus W. Duval, in Juarez, Mexico, on July
1, 1957, and that they were still married at the time of her demise.
6. Decedent did not have or adopt any children and did not take any children into
Decedent's home or raise any children, except:
Name: EARL PARKER DUVAL
Date of Birth: January 15, 1951
Place of Birth: El Paso, Texas
Date of Adoption: February 14, 1951
Name of Other Parent: Jeff Davis
Date of Death: June 22, 1996
Place of Death: Dallas, Dallas County, Texas
EARL PARKER DUVAL was never married and did not
have or adopt any children and did not take any children into
his/her home. EARL PARKER DUVAL died without
leaving a will.
5. Decedent left a written Will, which has not been and will not be probated,
Select one:
[ ] the original of which is attached hereto and incorporated herein
for all purposes.
[ ] a copy of which is attached hereto and incorporated herein
for all purposes.
6. There has been no administration of Decedent's estate, and none is expected.
7. Decedent left no debts that are unpaid, including expenses of her last illness and
funeral, except: None.
8. There are no unpaid estate or inheritance taxes, except: None.
9. To the best of Affiant’s knowledge, Decedent owned an interest in the following real
property:
Lot 13, Block 5, GRIDIRON ADDITION, an Addition to the City of Arlington,
Tarrant County, Texas, according to plat recorded in Volume 388-23, Page 125,
Deed Records of Tarrant County, Texas.
Property Address: 3323 JayGray Road, Arlington, Tarrant County, Texas 76017
By deed from MENARD UPSHUR and wife, KNOX UPSHUR to TITUS W.
DUVAL and wife, STARR G. DUVAL, dated April 3, 1988, recorded in Volume
9356, Page 179, Deed Records of Tarrant County, Texas.
10. This Affidavit is made for the purpose of placing evidence of record so that the heirs
at law of the said STARR G. DUVAL, Deceased, can be determined. Affiant(s) also state that the
facts are made of their own personal knowledge and they are true and correct.
FURTHER AFFIANT(S) SAITH NOT.”
TITUS W. DUVAL, “Affiant”
JACK LIPSCOMB, “Affiant”
SCURRY LIPSCOMB, “Affiant”
(Combined Jurat and Acknowledgment)
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was SUBSCRIBED AND SWORN TO AND ACKNOWLEDGED before
me on the ___ day of ______________, 20____, by TITUS W. DUVAL.
[Notary Seal]
__________________________________________
Notary Public, State of Texas
Notary’s commission expires:
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was SUBSCRIBED AND SWORN TO AND ACKNOWLEDGED before
me on the ___ day of ___________________, 20____, by JACK LIPSOMB and SCURRY
LIPSOMB.
[Notary Seal]
__________________________________________
Notary Public, State of Texas
Notary’s commission expires:
AFTER RECORDING, RETURN TO:
APPENDIX C
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPLICATION TO DETERMINE AND DECLARE HEIRSHIP
TO THE HONORABLE JUDGE OF SAID COURT:
SHELBY Z. KLEBERG BASTROP ("Applicant"), who resides at _________________________,
furnishes the following information to the Court:
1. STARR GLASSCOCK DUVAL ("Decedent") died on March 24, 2007, at
Arlington, Tarrant County, Texas.
2. No administration is pending upon Decedent's Estate and none appears necessary.
It is necessary and in the best interest of the Estate for the Court to determine who are the heirs
and only heirs of Decedent. [use only in a proceeding to determine heirship]
OR
2. An administration is pending upon Decedent's Estate in the above numbered and
entitled cause, and it is necessary and in the best interests of the Estate for the Court to determine
who are the heirs and only heirs of Decedent. [use if a regular dependent administration]
3. Applicant claims to be the owner of a part of Decedent's Estate. The names and
residences of all of Decedent's heirs, the relationship of each heir to Decedent, and the true
interest of the Applicant and of each of the heirs in the Estate of Decedent are as follows:
Names and Residences Relationship True Interest
4. At the time of Decedent's death, Decedent owned the following property:
5. Decedent was [set forth Decedent's complete marital history, e.g., (never
married)(married to and survived by ______________ on the date of death)(not married on the
date of death, but had been married and divorced from _________________ in about
________________ in _____________ and such divorced spouse of Decedent has no interest
in Decedent's property)(no married on the date of death, but had been married to
_____________ who died on __________________)].
6. [Set forth information concerning all children of Decedent, e.g., (No children
were born to or adopted by Decedent)(Only one child, ____________________ was born to or
adopted by Decedent)(Only_______________ children, ______________, were born to or
adopted by Decedent)(Other possible combinations including combinations of natural and
adopted children)].
7. All children born to or adopted by Decedent have been listed. Each marriage of
Decedent has been listed.
8. To the best of my knowledge, Decedent died intestate.
9. This Application does not omit any information required by Probate Code,
Section 49.
10. There are no debts owed by Decedent that are not secured by liens upon real
estate and there is no necessity for administration of this Estate. [Use only in a proceeding to
determine heirship]
Applicant prays that citation be issued as required by law; that an attorney ad litem be appointed to
represent Decedent's heirs whose names and whereabouts are unknown; that upon hearing hereof, this
Court determine who are the heirs and only heirs of Decedent and their respective shares and interests in
this Estate and that no necessity exists for an administration of Decedent's Estate.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF §
BEFORE ME, the undersigned authority; on this day personally appeared SHELBY Z. KLEBERG
BASTROP, and after being duly sworn, stated that:
"Insofar as is known to me, all the allegations in the foregoing Application are true in substance and in
fact and that no material fact or circumstance has, within my knowledge, been omitted from the
Application."
SHELBY Z. KLEBERGBASTROP
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, by SHELBY Z.
KLEBERG BASTROP on this _____ day of ___________________, 2011, to certify which witness my
hand and seal of office.
NOTARY PUBLIC, STATE OF TEXAS
Printed Name:
Commission Expires:
APPENDIX D
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
JUDGMENT DECLARING HEIRSHIP
On this day came on to be hear the sworn Application to Determine Heirship of the Estate
of STARR GLASSCOCK DUVAL, Deceased ("Decedent"), wherein SHELBY Z. KLEBERG
BASTROP is the Applicant, and Decedent's living heirs (whose names are known) are
Respondents, and Decedent's living heirs whose names and/or whereabouts are unknown and
heirs suffering legal disability are Defendants, and it appears to the Court, and the Court so finds,
that all parties interested in the Estate of Decedent have been made parties to the Application,
have filed written waivers of service of citation, have appeared and answered herein, or have
been duly and legally served with citation as required by law; that the Court appointed an
attorney ad litem to appear and answer and to represent Defendant and such attorney ad litem did
so appear and filed and answer for Defendants; that this Court has jurisdiction of the subject
matter and all persons and parties; that the evidence presented and admitted fully and
satisfactorily proves each and every issue presented to the Court; that Decedent died intestate and
that the heirship of Decedent has been fully and satisfactorily proved as well as the identity of
the nature of Decedent's property as being separate or community and the interest and shares of
each of the heirs therein; and that no administration is necessary.
The Court finds and it is ORDERED by the Court that the names and places of residence
of the heirs of Decedent and their respective shares and interests in the real and personal property
of Decedent are as follows:
Name and Place
of Residence
Share and Description of Real
Property
Share and Description of
Personal Property
[Set forth a complete listing of the heirs and beneficiaries, their place of residence, their shares and
interests in and description of real property to which each is entitled, and their shares and interests in and
description of personal property to which each is entitled.]
It is ORDERED that the attorney ad litem appointed to represent the interests of the
Defendants is allowed a fee of $_______________ to be paid out of the assets of Decedent.
The Court finds that there exists no necessity for administration of the Estate of
Decedent, no is ordered, and upon payment of all costs of Court no further proceedings be had in
this cause.
SIGNED this ____ day of November, 2011.
JUDGE PRESIDING
Approved:
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
Attorney Ad Litem for Defendants
APPENDIX E
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPLICATION FOR PROBATE OF WILL AS A MUNIMENT OF TITLE
TO THE HONORABLE JUDGE OF SAID COURT:
KING LEE LIBERTY, Applicant, furnishes the following information to the Court for the probate
of the written Will of STARR GLASSCOCK DUVAL, Deceased, as a Muniment of Title.
1. Applicant is an individual interested in this Estate. Applicant's Social Security number is
xxx-xx-1234, and Applicant resides at 2010 Corey Castle Court, Arlington, Tarrant County, Texas
76012. Applicant is attempting to purchase real property from the heirs of STARR GLASSCOCK
DUVAL, Deceased.
2. Decedent, STARR GLASSCOCK DUVAL, died on March 24, 2007, in Tarrant
County, Texas, at the age of forty-nine (49) years. Four (4) years have elapsed from the date of her death,
but Applicant would show the Court that he was not in default in failing to file Decedent's Will within
four years of Decedent's death and is trying to cure the title to the real property referenced herein by this
action.
3. This Court has jurisdiction and venue because Decedent was domiciled and had a fixed
place of residence in this County on the date of death.
4. Decedent’s heirs-at-law include her three children from her first marriage to AUSTIN P.
KLEBERG-- BAYLOR J. KLEBERG, SHELBY Z. KLEBERG BASTROP, and GAINES FRIO
KLEBERG, Deceased. BAYLOR J. KLEBERG was born July 13, 1977, and died on November 19,
1996, in Collin County, Texas. He was survived by his wife, BOWIE A. KLEBERG who resides at
1234 Red River Drive, Allen, Texas 75002. That the said children were the only children of Decedent;
that Decedent did not have or adopt any other children and did not take any other children into
Decedent’s home or raise any other children except: NONE
5. The Decedent owned real and/or personal property, or a probable value in excess of
$10,000.00.
6. Decedent left a valid written Will dated March 19, 1995, which was never revoked and
is filed herewith.
7. The subscribing witnesses to the Will are xxxxxxx xxxxxx (last known address 1234
Last Address Center Center, Abilene, Texas 79602); and xxxxxxx xxxxxx (1234 Last Address Center
Center, Abilene, Texas 79602). The Will is self proved in the manner prescribed by law.
8. No children were born to or adopted by Decedent after the date of the Will.
9. Decedent was married two (2) times. The first marriage was to AUSTIN P. KLEBERG
at a date and time unknown, in Texas, which marriage ended in divorce on or about 1976 or early 1977.
The second marriage was to TITUS WINKLER DUVAL on November 16, 1981, in Tarrant County,
Texas, which marriage ended with the death of TITUS WINKLER DUVALL on May 15, 2010.
10. Decedent's Will does not name the State of Texas, any governmental agencies of the State
of Texas or any charitable organizations as a devisee.
11. There are no debts owed by Decedent and there is no necessity for any administration of
this Estate.
12. Applicant asks the Court not to require Applicant to file a sworn statement stating
specifically the terms of the Will that have been fulfilled and the terms of the Will that have been
unfulfilled.
WHEREFORE, Applicant prays that citation be issued as required by law to all persons
interested in this Estate; that the Will be admitted to probate as a Muniment of Title and without any
administration thereon and that all other Orders be entered as the Court may deem proper.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
APPENDIX F
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNT TEXAS
ORDER ADMITTING WILL TO PROBATE AS A MUNIMENT OF TITLE
On the _______ day of ______________________, 2011, came on to be heard the Application
for Probate of Will as a Muniment of Title filed by KING LEE LIBERTY, in the Estate of STARR
GLASSCOCK DUVAL, Deceased.
The Court, having heard the evidence and having reviewed the Will and the other documents filed
herein, finds that the allegations contained in the Application are true; that notice and citation have been
given in the manner and for the length of time required by law; that Decedent is dead and that four (4)
years have elapsed since the date of Decedent's death; that the Applicant herein was not in default in
failing to file the Will of Decedent for probate within four (4) years of Decedent’s death and that
Applicant does have an interest herein to cure title to real estate he is attempting to purchase from the
Estate of STARR GLASSCOCK DUVAL, deceased; that all of the necessary Section 128B notices, or
waivers of such notice, have been given and filed with the Court or accepted under Section 128B(d); that
this Court has jurisdiction and venue of the Decedent's Estate; that Decedent left a Will dated March 19,
1990, executed with the formalities and solemnities and under the circumstances required by law to make
it a valid Will; that on such date Decedent had attained the age of eighteen (18) years and was of sound
mind; that such Will was not revoked by Decedent; that no objection to or contest of the probate of such
Will has been filed; that all of the necessary proof required for the probate of such Will has been made;
that such Will is entitled to probate; that Decedent's Will does not name the State of Texas, any
governmental agencies of the State of Texas or any charitable organizations as a devisee; that there are no
unpaid debts owing by the Estate of Decedent other than those secured by liens on real estate; that there is
no necessity for the administration of this Estate.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that such Will is admitted to
probate as a Muniment of Title only, and the Clerk of this Court is ORDERED to record the Will,
together with the Application in the Minutes of this Court, and this Order shall constitute sufficient legal
authority to all persons owing any money, having custody of any property, or acting as a registrar or
transfer agent of any evidence of interest, indebtedness, property or right belonging to the Estate, and to
persons purchasing from or otherwise dealing with the Estate, for payment or transfer by them to the
persons named in such Will as the beneficiaries therein; and that the beneficiaries entitled to such
property under such Will shall be entitled to deal with the properties to which he or she is entitled in the
same manner as if the record of title thereof were vested in his or her name.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Affidavit of
Compliance with the terms of said Will required by Section 89 of the Texas Probate Code is hereby
waived.
SIGNED this _________ day of November, 2011.
JUDGE PRESIDING
APPENDIX G
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
NOTICE UNDER PROBATE CODE SECTION 128B
TO: BOWIE A. KLEBERG at 1234 Red River Drive, Allen, Texas 75002
Application for Probate of Will as Muniment of Title was filed on November ___, 2011
in Probate Court No. ____ of Tarrant County, Texas under Cause No. 2011-PR____ regarding
the above-styled and numbered estate.
In accordance with Probate Code Section 128B, notice is hereby given that:
1. STARR GLASSCOCK DUVAL 's property will pass to STARR GLASSCOCK
DUVAL's heirs if the will is not admitted to probate; and
2. the person offering STARR GLASSCOCK DUVAL's will for probate may not be
in default for failing to present the will for probate during the four-year period
immediately following STARR GLASSCOCK DUVAL 's death.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
APPENDIX H
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
AFFIDAVIT OF SHELBY Z. KLEBERG BASTROP
WAIVER OF NOTICE UNDER PROBATE CODE SECTION 128B
BEFORE ME, the undersigned authority, personally appeared SHELBY Z. KLEBERG
BASTROP, and after by me being duly sworn, states upon oath the following:
1. "My name is SHELBY Z. KLEBERG BASTROP. I am over the age of eighteen (18)
years and am competent to make this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.
2. “I am one of two (2) surviving children of STARR GLASSCOCK DUVAL, Deceased,
and as such am one of the intestate successors of STARR GLASSCOCK DUVAL, Deceased. My
mother, STARR GLASSCOCK DUVAL, died on March 24, 2007, in Tarrant County, Texas, at the age
of forty-nine (49) years. Her last will and testament is being offered for probate as a muniment of title in
order to sell my mother’s real property herein described.
3. My brother, BAYLOR J. KLEBERG, died on November 19, 1996. He was married at the time
he died to BOWIE A. KLEBERG. His Will was probated in Cause No. 2011-PR_______, Collin
County, Texas.
4. My brother, and GAINES FRIO KLEBERG, was born on January 9, 1980, and I have
not seen nor heard from him in approximately ten (10) years. The last that I heard, he was homeless
somewhere in the Houston area perhaps.
5. “KING LEE LIBERTY (“the Applicant”) is attempting to purchaser of the real property
from the Estate of STARR GLASSCOCK DUVAL, Deceased. My father had the will in his
possession, and it was only found after my father passed away last fall. I am in full agreement with the
proposed sale. The said property is legally described as follows, to-wit:
LOT 1, BLOCK 1, xxxxxx ADDITION TO THE CITY OF FORT WORTH,
TARRANT COUNTY, TEXAS, ACCORDING TO PLAT RECORDED IN VOLUME 388-
24, PAGE 6, DEED RECORDS OF TARRANT COUNTY, TEXAS.
6. "Decedent was domiciled and had a fixed place of residence in this County on the date of
death.
7. “That the Applicant, KING LEE LIBERTY, is an individual interested in this Estate and
is trying to cure title to the real property referenced herein.
8. “I have no objection to the Applicant, KING LEE LIBERTY, offering the Last Will and
Testament of STARR GLASSCOCK DUVAL, Deceased, dated March 19, 1995, for Probate as a
Muniment of Title. I understand that Decedent’s property will pass to Decedent’s heirs if the Will is not admitted to
probate.
9. “More than four (4) years have elapsed from the date of her death. That the Applicant,
STARR GLASSCOCK DUVAL, is not in default for failing to present the Will for probate during the
four-year period immediately following Decedent’s death and is trying to cure the title to the real property
referenced herein by this action.
10. “That I am making this Affidavit in compliance with Section 128B of the Texas Probate
Code, and certify the above statements to be true and correct.”
KING LEE LIBERTY
SUBSCRIBED AND SWORN TO BEFORE ME by the said KING LEE LIBERTY, this
_________ day of November, 2011, to certify which witness my hand and seal of office.
NOTARY PUBLIC, STATE OF TEXAS
Printed Name:
My Commission Expires:
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
APPENDIX I
Sec. 145A. GRANTING POWER OF SALE BY AGREEMENT. In a situation in which a
decedent does not have a will or a decedent's will does not contain language authorizing the personal
representative to sell real property or contains language that is not sufficient to grant the representative
that authority, the court may include in an order appointing an independent executor under Section 145 of
this code any general or specific authority regarding the power of the independent executor to sell real
property that may be consented to by the beneficiaries who are to receive any interest in the real property
in the application for independent administration or in their consents to the independent administration.
The independent executor, in such event, may sell the real property under the authority granted in the
court order without the further consent of those beneficiaries.
Sec. 145B. INDEPENDENT EXECUTORS MAY ACT WITHOUT COURT APPROVAL.
Unless this code specifically provides otherwise, any action that a personal representative subject to court
supervision may take with or without a court order may be taken by an independent executor without a
court order. The other provisions of this part are designed to provide additional guidance regarding
independent administrations in specified situations, and are not designed to limit by omission or otherwise
the application of the general principles set forth in this part.
Sec. 145C. POWER OF SALE OF ESTATE PROPERTY. (a) Definition. In this section,
"independent executor" does not include an independent administrator.
(b) General. Unless limited by the terms of a will, an independent executor, in addition to any
power of sale of estate property given in the will, and an independent administrator have the same power
of sale for the same purposes as a personal representative has in a supervised administration, but without
the requirement of court approval. The procedural requirements applicable to a supervised administration
do not apply.
(c) Protection of Person Purchasing Estate Property. (1) A person who is not a devisee or heir is
not required to inquire into the power of sale of estate property of the independent executor or
independent administrator or the propriety of the exercise of the power of sale if the person deals with the
independent executor or independent administrator in good faith and:
(A) a power of sale is granted to the independent executor in the will;
(B) a power of sale is granted under Section 145A of this code in the court order
appointing the independent executor or independent administrator; or
(C) the independent executor or independent administrator provides an affidavit,
executed and sworn to under oath and recorded in the deed records of the county where the property is
located, that the sale is necessary or advisable for any of the purposes described in Section 341(1) of this
code.
(2) As to acts undertaken in good faith reliance, the affidavit described by Subsection
(c)(1)(C) of this section is conclusive proof, as between a purchaser of property from an estate, and the
personal representative of the estate or the heirs and distributees of the estate, with respect to the authority
of the independent executor or independent administrator to sell the property. The signature or joinder of
a devisee or heir who has an interest in the property being sold as described in this section is not
necessary for the purchaser to obtain all right, title, and interest of the estate in the property being sold.
(3) This section does not relieve the independent executor or independent administrator
from any duty owed to a devisee or heir in relation, directly or indirectly, to the sale.
(d) No Limitations. This section does not limit the authority of an independent executor or
independent administrator to take any other action without court supervision or approval with respect to
estate assets that may take place in a supervised administration, for purposes and within the scope
otherwise authorized by this code, including the authority to enter into a lease and to borrow money.
APPENDIX J
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPLICATION FOR LETTERS OF INDEPENDENT ADMINISTRATION
PURSUANT TO §145(c)(or 145(d) or 145(e)), TEXAS PROBATE CODE
TO THE HONORABLE JUDGE OF SAID COURT:
Your Applicants, _______________ and _____________________, being all of the distributees
of the Estate of STARR GLASSCOCK DUVAL, Deceased, respectfully show to the Court the
following:
1. _________________ and ______________ reside and are domiciled in ___________
County, ____________ and are the surviving parents of Decedent.
2. Decedent, ___________________, died at the age of _______ (____) on
_________________, ______, in _____________, _________ County, _________.
3. Four years have not elapsed since the death of the decedent and the filing of this
Application.
4. At and before the date of death, Decedent resided and was domiciled in the
_____________ County, _________.
5. At the time of death, the said Decedent was seized and possessed of real and personal
property located in _______________ County, ___________ and elsewhere of a probable
value in excess of $____________.
Allegations pursuant to §145(c) or §145(d):
1. Decedent left a valid written Will ("Will") dated _______________ which was never
revoked and is filed herewith.
2. The subscribing witnesses to the Will were __________________ and
_________________, both of whom reside in _____________ County, _________. The
Will was made self-proved in the manner provided by law.
3. Neither the State of _______________, nor any agency thereof, nor any charitable
organization is named as a devisee by the Will.
4. No child or children were born to or adopted by Decedent after the date of the Will.
5. Decedent was never divorced.
6. Decedent's will named Applicant ____________________________ to serve without
bond or other security as Executor. Decedent's will fails to provide for an independent
administration of said estate. (§145(e)) or
7. Decedent's will named ____________________ to serve without bond or other security
as Independent Executor, and __________________ to serve without bond or other
security as Successor Independent Executor in the event of the simultaneous deaths of
__________________ and __________________. However, __________________
predeceased Decedent __________________ survives. Decedent's will fails to provide
for the appointment of an Independent Executor in such situation. (§145(d))
8. Applicants, being all of the heirs of the Decedent and all of the distributees under said
Will of the said Decedent, agree that it is advisable to have an independent administration
of said estate and request the Court to order that there be no action in any Court in
relation to the settlement of said estate other the return of an inventory, appraisement and
list of claims of the Estate.
9. Applicants collectively, designate __________________ to serve as Independent
Executor (§145(c))
Independent Administrator with Will Annexed (§145(d))
of said estate. __________________ is qualified and is not disqualified by law to act as
Independent Executor/Independent Administrator with Will Annexed.
10. A necessity exists for administration of this estate because a Federal Estate Tax Return
must be prepared and filed on this estate and because the estate should be distributed
among the heirs.
11. Applicants, and each of them, hereby enter an appearance in this proceeding, and waive
the issuance and service on them of citation and notice.
Allegations pursuant to §145(e):
1. Decedent died intestate at the age of ________________ on ________________, ________, in
________________, ___________ County, __________.
2. At and before the date of death, Decedent resided and was domiciled in the ________________
County, _________.
3. Four years have not elapsed since the death of the decedent and the filing of this Application.
4. A necessity exists for administration of this estate because a Federal Estate Tax Return must be
prepared and filed on this estate and because the estate should be distributed among the heirs.
5. Your Applicants, being all of the heirs of Decedent, agree that it is advisable to have an
independent administration of said estate and request the Court to order that there be no action in
any Court in relation to the settlement of said estate other the return of an inventory, appraisement
and list of claims of the Estate.
6. Applicants collectively designate __________________ to serve as Independent Administrator of
said estate. The said __________________ is qualified and is not disqualified by law to act as
Independent Administrator.
7. No children were born to Decedent.
8. Decedent was never married nor divorced.
9. Applicants, and each of them, hereby enter an appearance in this proceeding, and waive the
issuance and service on them of citation and notice.
(§145(c) & §145(d))
WHEREFORE, PREMISES CONSIDERED, Applicants pray that citation issue as required by
law; and that upon a hearing hereof, the Court enter an order determining that the Applicants herein
constitute all of the distributees of the estate of Decedent and that the Will be admitted to probate, that
Letters Testamentary (§145(c)) (or) Letters of Independent Administration with Will Annexed (§145(d))
be issued to __________________; that it be ordered that no other action in this Court be had in the
settlement of said Estate other than the return of an Inventory, Appraisement and List of Claims of the
Estate (§145(e)), and that such other and further orders be made as to the Court may seem proper.
(§145(e))
WHEREFORE, PREMISES CONSIDERED, your Applicants pray that citation be issued as
required by law, and that upon a hearing hereof, the Court enter an order determining that the Applicants
herein constitute all of the heirs of Decedent and all of the distributees of his estate, and their respective
shares and interests; that __________________ be appointed Independent Administrator of this estate;
that Letters of Independent Administration be issued to the said __________________; that it be ordered
that no other action in this Court be had in the settlement of said Estate other than the return of an
Inventory, Appraisement and List of Claims of the Estate, and that such other and further orders be made
as to the Court may seem proper.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
STATE OF _______________ )
COUNTY OF _____________ )
BEFORE ME, the undersigned Notary Public, on this day personally appeared
__________________ and __________________ known to me to be the persons whose names are
subscribed to the foregoing Application for Letters of Independent Administration, who, being by me first
duly sworn, did upon their individual oaths state that:
1. I have read the foregoing Application for Letters of Independent Administration;
2. All of the allegations in the foregoing Application are true in substance and in fact;
3. No material fact or circumstance relating to the identity of the heirs and distributees of the said
__________________ or in any way involving the matters to be determined in this proceeding
has, within my knowledge, been omitted from said Application.
__________________ __________________
SWORN TO AND SUBSCRIBED before me by __________________ and
__________________, this ______ day of ____________________, ______, to certify which witness my
hand and seal of office.
Notary Public, State of
Texas
APPENDIX K-1
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPLICATION FOR APPOINTMENT OF SUCCESSOR INDEPENDENT
EXECUTRIX AND ISSUANCE OF NEW LETTERS TESTAMENTARY
IN ACCORDANCE WITH § 220 OF THE TEXAS PROBATE CODE
TO THE HONORABLE JUDGE OF SAID COURT:
SHELBY Z. KLEBERG BASTROP, Applicant, furnishes the following information to
the Court for the appointment as Successor Independent Executrix of the Estate of STARR
GLASSCOCK DUVAL, Deceased, in accordance with section 220 of the Texas Probate Code
and for issuance of new Letters Testamentary:
1. Applicant, SHELBY Z. KLEBERG BASTROP, is an individual interested in
this Estate and is domiciled in and residing at ___________________________, Fort Worth,
Tarrant County, Texas.
2. TITUS WINKLER DUVALL was appointed Independent Executrix of the
Estate of STARR GLASSCOCK DUVAL on __________________, ______ in Cause No.
2011-PR________ in Probate Court ___ of TARRANT County, Texas. TITUS WINKLER
DUVALL died on ______________, __________. Please see a copy of the Death Certificate
attached as Exhibit "A" hereto.
3. The Will of STARR GLASSCOCK DUVAL named SHELBY Z. KLEBERG
BASTROP to serve without bond or other security as Successor Independent Executrix of
Decedent's Will, in which capacity Applicant would not be disqualified by law from serving as
such or from accepting Letters Testamentary, and Applicant would be entitled to such Letters.
Applicant requests that the Court name SHELBY Z. KLEBERG BASTROP to serve without
bond or other security as Successor Independent Executrix of Decedent's Will, in which capacity
Applicant would not be disqualified by law from serving as such or from accepting Letters
Testamentary, and Applicant would be entitled to such Letters.
4. No action has occurred to close Decedent’s estate, and the estate remains open.
5. A necessity exists for the appointment of SHELBY Z. KLEBERG BASTROP as
Successor Independent Executrix for the administration of this Estate. There is a bank account
that remains in the name of SHELBY Z. KLEBERG BASTROP that needs to be distributed.
The bank is requiring updated Letters Testamentary before the bank will disburse. [ list all
reasons why further administration is necessary]
WHEREFORE, Applicant prays that SHELBY Z. KLEBERG BASTROP be
appointed as the Successor Independent Executrix in this Estate without citation or notice; that
new Letters Testamentary be issued to Applicant, and that all other Orders be entered as the
Court may deem proper.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
APPENDIX K-2
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
PROOF OF NEED FOR CONTINUATION OF ADMINISTRATION
FOR THE ESTATE OF STARR GLASSCOCK DUVAL, DECEASED
On this day, GAINES FRIO KLEBERG, brother of Applicant, personally appeared in Open Court, and
after being duly sworn, stated the following:
1. "My name is GAINES FRIO KLEBERG. I have an interest in this Estate and
am domiciled in and reside at ____________________________. SHELBY Z. KLEBERG
BASTROP is my sister, one of the heirs of the Estate of STARR GLASSCOCK DUVAL,
Deceased, and the Applicant herein. SHELBY Z. KLEBERG BASTROP has an interest in this
Estate and is domiciled in and resides at _______________________. Because of the out of
state residency of SHELBY Z. KLEBERG BASTROP, she has requested that I appear in Court
on her behalf.
2. TITUS WINKLER DUVALL was appointed Independent Executrix of the
Estate of STARR GLASSCOCK DUVAL, Deceased, on __________, ______, in Cause No.
_______________, Probate Court ___ of ___________ County, _______. TITUS WINKLER
DUVALL died on _____________, ______. A copy of the Death Certificate was submitted
with the Application.
3. A necessity exists to continue the administration of the Estate of STARR
GLASSCOCK DUVAL, Deceased. There is a bank account that remains in the name of
STARR GLASSCOCK DUVAL that needs to be distributed. The bank is requiring updated
Letters Testamentary before the bank will disburse the funds.
4. The Last Will and Testament of STARR GLASSCOCK DUVAL named
SHELBY Z. KLEBERG BASTROP to serve without bond or other security as Alternate
Independent Executrix of Decedent's Will, in which capacity SHELBY Z. KLEBERG
BASTROP would not be disqualified by law from serving as such or from accepting Letters
Testamentary, and Applicant would be entitled to such Letters."
GAINES FRIO KLEBERG
SUBSCRIBED AND SWORN TO BEFORE ME by the said GAINES FRIO KLEBERG
on this _____ day of _________________, 2011, to which witness my hand and seal of office.
NOTARY PUBLIC, STATE OF TEXAS
APPENDIX K-3
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPOINTMENT OF RESIDENT AGENT
The undersigned has and does by these presents appoint ________________________,
whose address is ________________________, ___________, ______ _______, to be resident
agent to accept service of process in all actions or proceedings with respect to this Estate
pursuant to the provisions of Section 78(d) of the Texas Probate Code and in anticipation of the
appointment of the undersigned as Independent Executor of this Estate.
SIGNED this _____ day of ___________________, ______.
____________________________
STATE OF §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
______________________________, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ____ day of
__________________, ______.
NOTARY PUBLIC, STATE OF
APPENDIX K-4
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
OATH OF SUCCESSOR INDEPENDENT EXECUTRIX
I do solemnly swear that the writing which had been offered for probate, in the above-
entitled and numbered proceeding, was the Last Will and Testament of
_____________________________, Deceased, so far as I know or believe, and that I will well
and truly perform all of the duties of Successor Independent Executrix without bond of the Estate
of _________________________, Deceased.
____________________________
SUBSCRIBED AND SWORN TO BEFORE ME by the said
________________________ this ____ day of _____________, ______, to certify which
witness my hand and seal of office.
NOTARY PUBLIC, STATE OF
FREESTONE, SOMERVELL, & HAYS, P.C.
________________________________
STERLING E. FREESTONE
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
APPENDIX K-5
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE
COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
ORDER GRANTING APPLICATION FOR APPOINTMENT OF
SUCCESSOR INDEPENDENT EXECUTRIX AND ISSUANCE OF
NEW LETTERS TESTAMENTARY IN ACCORDANCE WITH
§ 220 OF THETEXAS PROBATE COURT
On this day came on to be heard the Application for Appointment of Successor
Independent Executrix and Issuance of New Letters Testamentary In Accordance with § 220 of
the Texas Probate Code filed by SHELBY Z. KLEBERG BASTROP in the Estate of STARR
GLASSCOCK DUVAL Deceased.
The Court, having heard the evidence and having reviewed the Will and the other
documents filed herein, finds that the allegations contained in the Proof are true; that TITUS
WINKLER DUVALL was appointed Independent Executrix of the Estate of STARR
GLASSCOCK DUVAL, Deceased, on ____________, _____ in Cause No.2011-PR______ in
Probate Court of TARRANT County, Texas; that TITUS WINKLER DUVALL died on
_____________, ______; that all of the necessary proof required for the appointment of a
successor independent executrix of such Estate has been made; that in said Will, Decedent
named SHELBY Z. KLEBERG BASTROP as Successor Independent Executrix to serve
without bond, who is duly qualified and not disqualified by law to act as such, and to receive
Letters Testamentary; and that a necessity exists for the continued administration of this Estate.
IT IS ORDERED, ADJUDGED AND DECREED that no bond or other security is
required and that after the taking and filing of the Oath required by law, Letters Testamentary
shall be issued to SHELBY Z. KLEBERG BASTROP, who is appointed Successor
Independent Executrix of Decedent's Will and Estate, and no other action shall be had in this
Court.
SIGNED this _____ day of November, 2011.
JUDGE PRESIDING
APPENDIX L
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPLICATION FOR COURT-APPROVED SALE OF REAL PROPERTY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW SHELBY Z. KLEBERG BASTROP, Administrator of the Estate of STARR
GLASSCOCK DUVAL, Deceased (“Applicant”) and files this Application for Court-Approved Sale of
Real Property and furnishes the following information to the Court:
1. The Inventory, Appraisement, and List of Claims of this Estate has been filed and
approved by this Court.
2. A full legal description of the real property (the “Property”) sought to be sold and a
description of the Estate’s ownership interest in the Property is attached to this application, as Exhibit
“A”, and made a part hereof for all purposes.
3. A statement, verified by affidavit, showing fully and in detail the condition of the Estate,
the charges and claims that have been approved or established by suit or that have been rejected and may
yet be established, the amount of each claim, the property of the estate remaining on hand and liable for
the payment of those claims, and all other facts tending to show the necessity and advisability of this
proposed sale, is attached it his Application as Exhibit “B” and made a part hereof for all purposes.
4. It is deemed to be in the best interest of the Estate to sell the Estate’s interest in the
Property, and it is necessary and advisable to see the Estate’s interest in the Property in order to pay
expenses of administration
5. It will be in the best interest of the Estate for the Property to be sold at a private sale for
cash.
Applicant requests that citation be issued to all persons interested in this Estate, as required by
law, and that the Court sign an order authorizing Applicant to sell the Estate’s interest in the Property
described in Exhibit “A” at a private sale on the terms set forth above, and such other orders as the Court
may deem proper.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEY FOR APPLICANT
APPENDIX M
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
ORDER PERMITTING SALE OF REAL PROPERTY
On this day the Court considered the Application For Sale of Real Property and finds that
citation has been issued and served as required by law; that the Application is accompanied by an
Exhibit, verified by affidavit, showing the condition of the Estate, and the Application and
Exhibit meet all requirements by law; ; that no hearing was requested or necessary; that the real
property to be sold (“the Property”) is fully described in Exhibit “A” attached to and made a part
of this Order; that the general bond is sufficient as required by law; that the Application should
be granted and the sale of the Property should be made at private sale; that it is in the best
interest of the Estate for the Property to be sold; that the sale is necessary and advisable in order
to pay expenses of administration and to make a distribution to all heirs.
IT IS ORDERED that the Property described shall be sold at a private sale for cash.
IT IS ORDERED that no additional bond shall be required at this time, and that after the
sale has been made a Report of Sale shall be filed and returned in accordance with law.
SIGNED this ____ day of ______________, 2011.
_________________________________
Judge Presiding
APPENDIX N
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
REPORT OF SALE OF REAL PROPERTY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW SHELBY Z. KLEBERG BASTROP, Administrator of the Estate of
STARR GLASSCOCK DUVAL, Deceased and would respectfully report to the Court as
follows:
1. On ___ ________, the Court signed an Order Authorizing Sale of Real Property.
2. A description of the property sold is attached and designated as Exhibit “A”.
3. The property was sold at a private sale on the ____ day of _______, 2011.
4. The name of the purchaser is ________________.
5. The total sales price for the property sold was $___________, less estimated costs
and expenses of sale in the sum of $_____________, leaving a net sale price of $____________ .
6. This sale is in the best interest of the Estate and was made as specified in the
contract, a copy of which is attached as Exhibit “B”, for cash.
7. The purchaser is ready to comply with the Order of Sale of Real Property.
8. All of the facts set forth herein are true and correct.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_______________________________ _________________________________________
SHELBY Z. KLEBERG BASTROP STERLING E. FREESTONE
Administrator 1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEY FOR APPLICANT
SUBSCRIBED AND SWORN TO BEFORE ME by SHELBY Z. KLEBERG
BASTROP this ____ day of November, 2011, to certify which witness my hand and seal of
office.
_______________________________________
Notary Public in and for the State of Texas
Insert Certificate of Service if situation warrants
APPENDIX O
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
STARR GLASSCOCK DUVAL § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
ORDER CONFIRMING SALE OF REAL PROPERTY
On this day the Court heard and considered the Report of Sale of Real Property (the
“Report”). The Court finds that at least five days have expired since the filing of said Report;
that the general bond is sufficient to protect the Estate and is in compliance with the Court’s
previous Order of Sale of Real Property and with the law; and that the real property has been
sold at private sale for a fair price and the sale was in the best interest of the estate and was
properly made and in conformity with the law. The property is described on the page attached
hereto as Exhibit “A”, made a part of this decree.
IT IS ORDERED AND DECREED that the sale of the real property described in the
Report is hereby APPROVED and CONFIRMED and conveyance of the property is authorized
upon compliance by the purchaser with the terms of sale, which sale is to be for cash.
SIGNED this the ____ day of ____________________, 2011.
_______________________________________
JUDGE PRESIDING
APPENDIX P
CAUSE NO. 2011-PR__________
IN THE ESTATE OF § IN THE PROBATE COURT
§
TRINITY YOAKUM KLEBERG § NO. ______
§
DECEASED § TARRANT COUNTY, TEXAS
APPLICATION FOR § 889 SALE OF REAL PROPERTY
OF A MINOR BY AN ADOPTIVE PARENT
TO THE HONORABLE JUDGE OF SAID COURT:
BOWIE A. KLEBERG, Applicant, furnishes the following information to the Court for an order to sell
the interest of TRINITY YOAKUM KLEBERG, a minor, in real property without being appointed
guardian:
1. Applicant, BOWIE A. KLEBERG, is the surviving, adoptive parent of TRINITY
YOAKUM KLEBERG, the Minor. Both Applicant and Minor are domiciled in and residing at
_____________________________, Fort Worth, Tarrant County, Texas.
2. Minor, TRINITY YOAKUM KLEBERG, owns an undivided one-forth (1/4) interest in
the real property commonly known as ______________________, _______________, _____________
County, ________________ (hereinafter the "Real Property") by virtue of the Statutes of Descent and
Distribution of the State of Texas. Minor's adoptive father, __________________________, died
intestate on ____________________, __________, no Last Will and Testament having been offered for
probate, and there has been no administration taken out on her Estate, none being necessary. The
Affidavit of Heirship of ____________________ evidences her adopted, minor daugher 's undivided one-
forth (1/4) ownership interest in the Real Property.
3. The net value of the interest does not exceed $100,000.00.
4. This Court has jurisdiction and venue because the Minor's surviving, adoptive parent,
BOWIE A. KLEBERG, has custody of the Minor and resides in Fort Worth, Tarrant County, Texas.
5. The legal description of the Real Property is as follows:
6. The purchaser of the Real Property is ___________________. Attached as Exhibit "1" is
a true and correct copy of the One to Four Family Residential Contract (Resale). Attached as Exhibit "2"
is a true and correct copy of the Commitment for Title issued by Rattikin Title Company in connection
with the sale.
7. The sale of the interest of Minor is for cash.
8. All funds received by BOWIE A. KLEBERG on behalf of Minor shall be used for the
use and benefit of the Minor.
9. It is in the best interest of the Minor that the Court order the sale of the Real Property.
WHEREFORE, Applicant prays that the Court find that this sale is in the best interest of the
Minor; that an order be issued for Applicant to sell the interest of Minor in the Real Property to Purchaser
without the appointment of a guardian; that the proceeds of the sale belonging to Minor be paid into the
Court registry; and that all other relief be granted and Orders be entered as the Court may deem proper.
Respectfully submitted,
FREESTONE, SOMERVELL, & HAYS, P.C.
_________________________________________
STERLING E. FREESTONE
1234 S. Lawyer Lane
Fort Worth, Texas 76109
TX State Bar No. __________
555/991-3211 phone
555/991-5312 fax
ATTORNEYS FOR APPLICANT
VERIFICATION
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned Notary Public, on this day personally appeared BOWIE A.
KLEBERG known to me to be the person whose name is subscribed to the foregoing Application, who,
being by me first duly sworn, did upon her individual oath state that:
1. I have read the foregoing APPLICATION FOR § 889 SALE OF REAL PROPERTY OF
A MINOR BY AN ADOPTIVE PARENT;
2. All of the allegations in the foregoing Application are true in substance and in fact; and
3. No material fact or circumstance relating to or in any way involving the matters to be
determined in this proceeding has, within my knowledge, been omitted from said Application.
BOWIE A. KLEBERG
SWORN TO AND SUBSCRIBED before me by BOWIE A. KLEBERG, this ______ day of
November, 2011, to certify which witness my hand and seal of office.
NOTARY PUBLIC STATE OFTEXAS