Our legal system is based on the idea that each party to a lawsuit should be notified of the suit. This ensures that they can protect their interests or defend themselves against the suit.
With probate cases, this involves personally serving citation. This notice process is mentioned in several sections of the Texas Estates Code.
The courts have made it clear that service of citation is critical. The courts have generally described service of citation as a requirement of procedural due process. It is the notice required to inform parties of proceedings which may directly and adversely affect their legally protected interests. The courts have also described it in terms of fundamental fairness, saying that fundamental fairness dictates that a party must be given a reasonable opportunity to be heard on the merits of his case; such an opportunity must be granted at a meaningful time and in a meaningful manner.
Given that service of citation is critical in probate cases, can it be waived as if it is of no consequence? The court addresses this in the Estate of Berry, No. 12-19-00077-CV(Tex. App.–Tyler 2019) in the context of an application to probate a copy of a lost will.
Facts & Procedural History
This is a probate dispute between a surviving spouse and one of the decedent’s three step-children.
The dispute involves a will that leaves the entire estate to the surviving spouse. The surviving spouse could not locate the original will. She submitted a copy of the will for probate and a will contest was filed by one of the children.
The decedent’s other two children were not served with citation in the probate case.
The probate court went ahead and admitted the will to probate even though the surviving spouse did not serve citation on two of the decedent’s children.
The question for the appellate court was whether the probate court could admit the will to probate when the two children were not served with citation.
Citation for a Lost Will
The term “citation” refers to a written statement that lists the facts in the application for probate, identify the court, and state when the court will act on the application. The county clerk usually prepares the citation.
When one probates a copy of a lost will, the applicant has to make sure that the citation is served on all of the decedent’s heirs and the decedent’s heirs (i.e., the persons who would inherit if there is no will). This service of citation notifies the heirs of the need to check the copy of the will to ensure that it is valid or invalid.
Service usually means personal service, i.e., hand delivery by a process server. Service does not have to include actual personal service if the addresses for the heirs cannot be found or if the heirs do not reside in Texas. It also does not have to be made if the heir signs a waiver of service or enters an appearance in the probate case. These requirements are set out in Section 258.002 of the Texas Estates Code.
Service of Citation is Critical, Usually…
This brings us back to the Estate of Berry. Two of the decedent’s children did not sign a waiver of service, did not enter an appearance in the case, and were not personally served with citation even though they resided in Texas. The probate court admitted the will to probate even though the requirements of Section 258.002 of the Texas Estates Code were not met.
Can something that the courts have described as being critical, be waived off as not having any consequence?
The appellate court had this to say about it:
Cheryl and Carolyn [the two children] had actual knowledge of the probate proceedings and Elizabeth’s [the decedent’s other child] contest, and they chose not to join the contest. Cheryl and Carolyn were not parties in the trial court and are not parties to this appeal. Elizabeth has not explained how the trial court’s act of conducting the trial without proof of service of process on Cheryl and Carolyn caused the rendition of an improper judgment or prevented Elizabeth from properly presenting her case to this court. See TEX. R. APP. P. 44.1(a). Therefore, although the trial court did not comply with Section 258.003, we conclude that such noncompliance constitutes harmless error on the facts of this case. We overrule Elizabeth’s third issue.
There you have it. There is no consequence if the requirements for service of citation in Section 258.003 have not been met. A will can be probated even though these rules say otherwise.
This holding in this case does not apply to the parties who what to directly contest a will. It applies to situations where heirs are aware of the probate proceeding, but the heirs do not want to participate in it. These heirs may not need to be served with citation.
If you are the party trying to probate copy of a lost will and wonder how far you have to go to try to locate the heirs, the Estate of Berry may provide the answer. If you are wondering whether the heirs have to sign waivers, they may not have to do so.
As long as there is evidence that the heirs in question know of the court proceedings and they are not the parties that actually contest the will, service of citation may not be required for these heirs even though the Estates Code says that it is required.