Guardianship, Probate Court Appeals


In a Probate or Guardianship case where the Court has made unfavorable rulings that seem to have either misapplied or ignored the law, the question then becomes, "What are my options for appealing the bad decision?" Said another way, one might ask, "Where do I turn when I find myself in a Court that has neither the training nor the expertise to handle the specialized fields or probate and guardianship litigation cases?

This is where the appellate team at Ford + Bergner comes into play.

If you want to appeal a Guardianship decision or file a Probate Court appeal in Texas, discuss the case with an appellate attorney who has substantial knowledge in this area of law, one with great success appealing these types of rulings.

Why Texas Created Probate Courts


As has been discussed in other areas of this site, the probate and guardianship areas of law are uniquely complex. The complexities of these fields of law have led to the creation of specialized courts (the Probate Courts) to focus specifically on these areas of laws.

Interestingly, the Probate Courts are the only courts in the state of Texas that are specifically limited by law to handling only a certain type of cases. The purpose behind creating special Probate Courts is to provide judges who have the special expertise and knowledge of the probate and guardianship laws to ensure that these issues are handled correctly in the courts.

Many Texas Cases Handled by Judges Lacking Probate, Guardianship Training 

Unfortunately, the specialized Probate Courts only exist in the largest 10 counties in Texas. In the other 224 counties across the state, probate and guardianship cases are handled by judges who do not have specific probate and guardianship training, and in many counties, these complex cases are decided by judges who are not lawyers.

It is incredible to think that someone who has never received any legal training could make the decision to strip away all your basic Constitutional rights. However, in the counties where the non-lawyer county judge hears guardianship cases, this is exactly the situation in which you could find yourself or a loved one.

Competent Guardianship, Probate Lawyers Could Have Fixed Case Problems

In the last few years, Ford+Bergner has seen numerous cases in smaller counties where the probate and guardianship laws have been completely ignored because the judges in those counties lack the expertise to correctly apply the law. In some instances, those cases have involved estates with several million dollars in value.

While many of the problems in these cases could have been fixed by having competent lawyers involved from the beginning of the cases, Ford+Bergner has not been hired to handle these cases until after the unfavorable outcomes have been reached.

Probate & Guardianship Cases Growing While Guardianship Law Develops

No one disputes the fact that the U.S. population and life expectancy have done nothing but increase over the last several decades, and we have no reason to believe that the increase will slow down anytime in the future. With these increases, the courts have seen an influx of probate and guardianship related cases. In particular, the number of new guardianship cases filed each year to address the needs of incapacitated elderly adults has exploded in the last 15 years as the baby-boomers have started reaching retirement age.

At the same time, however, the guardianship area of law is only starting to really develop.

With Guardianship Laws Breaking New Ground, Appellate Courts Serve Vital Function

Even today, guardianship laws are breaking new ground on ways to deal with incapacity issues and how best to structure estates so that a person's wishes are met after they lose the ability to speak for themselves. Therefore, the appellate courts serve a vital function to review and correct the trial courts to ensure strict compliance to the Estates Code.

From Trial Court to Appellate Court

To better understand the function of the appellate courts, it is probably important to understand the distinction between the "trial" court and the appellate courts. Probate and guardianship cases are initially filed in either the county court (in smaller counties) or the probate court (in larger counties).

Those courts where the cases are initially filed and heard are known as the "trial" courts because these are the courts in which the original case is litigated. If necessary, the trial court will conduct a full trial in the case of a contested probate or guardianship case, and if requested by one of the parties, the trial will be conducted in front of a jury.

If the party who loses at the trial court level decided to appeal the decision of the trial judge or the jury, then the case is going to be appealed to the appellate court, and possibly to the Texas Supreme Court.

Appeals Court Determines if Law Correctly Applied

At the appellate court level, the justices of the appeals court will review the proceedings at the trial court and determine if there was an error in applying the law. It is important to note, however, that the appellate court does not conduct a new trial of the original issues, but instead, merely reviews the legal issues raised at the trial court to determine if the law was not applied correctly.

Appeal vs. Mandamus

The two main areas of attack available in a appeal are 1) the traditional Appeal and 2) the Mandamus. Learn about the differences below. 

The Traditional Appeal: Appealing Trial Court Decision

An Appeal is the request to the appellate court to overturn, modify, or correct the ruling of the trial court. The traditional appeal is available in virtually every case in which a trial occurs. However, it is important to note that the timeline for filing an appeal is very short.

Timeline for Appealing a Court Ruling

Specifically, in most situations, the party intending to appeal the trial court's ruling must take the initial action to put forth their appeal within as little as 20 days after the date the trial court's order or judgment is signed.

From there, the entire appellate process has several timelines which must be strictly followed, and failure to follow any of those guidelines can result in the appeal being either dismissed or denied.

Like the strict timelines, anyone wanting to appeal a lawsuit must pay attention to the significant legal research necessary to successfully prevail in an appeal. Because the appeal is solely restricted to issues of law, the extent of the legal research involved in extensive.

Because of the strict timelines and the complexities of the legal research involved, most trial attorneys will not tackle the challenge of pursing an appeal for their clients.

What Is a Mandamus?

A Mandamus is an original proceeding in an Appellate Court, which is afforded in very limited circumstances where a traditional appeal is not otherwise an adequate remedy.

Generally, a mandamus is issued to order the trial judge to overturn a void order issued by the trial judge, but the mandamus is only granted in situations which clearly violate basic law or procedure.

How Mandamus Differs from the Traditional Appeal

Similar to the traditional appeal, the Mandamus is a tool used to appeal the decision of a trial judge. However, the mandamus is considered only in more serious violations by the trial judge, and they usually relate to more fundamental legal issues such as "does the court have proper jurisdiction?"

Like the appeal, the mandamus has very strict timelines throughout the process, and it requires intense legal research. However, unlike the appeal, the Mandamus process generally produces an opinion from the appellate court in a very short period of time.

It is not unusual for the entire process from the date the first document is filed with the appellate court to the issuance of the Court's opinion to be less than four (4) months.

The traditional appeal can often take more than a year to complete.

How Our Attorneys Approach Appeals

The decision to appeal a guardianship or probate case decision is usually more complex than the original decision to file suit in the case. The likelihood of prevailing in an appeal can depend on such factors as the issues presented to the trial court during the original trial, the nature of the testimony and/or evidence offered during the trial, and prior decisions made in the appellate courts on similar issues.

From a practical perspective, the cost involved in pursuing the appeal must also be weighed against the potential benefit to be gained by pursuing the appeal. In most cases, the benefit to be achieved is likely going to be determined by the size of the estate or trust involved.

Attorney's Background, Expertise Key to Success in Appeal

The key to success in appeals of probate and guardianship cases is to hire attorneys who understand the probate and guardianship laws completely. Ford and Bergner has had great success appealing rulings all over the state, particularly prevailing in Mandamus actions in guardianship cases.

Our success has resulted from the fact that our background and expertise exclusively in the areas of probate and guardianships provides a more in-depth understanding of these laws that most attorneys handling appellate cases do not possess.

As stated above, each type of appeal requires extensive research and understanding of these laws. Because the attorneys at Ford+Bergner bring such substantial knowledge of these areas, they are able to target their appellate research to the most critical issues to address with the appellate courts.

By narrowly focusing the issues for the appellate courts, the Courts are able to gain a better understanding of the issues and the position being put forward for the Ford+Bergner clients.

F+B Attorneys Handle Appeals in All Areas of Probate & Guardianship Cases

We cover appeals in all areas of probate and guardianship cases, including Guardianship rulings, will contests, probate administrations, removal actions, surcharge actions, and trust disputes. If requested, we can provided a list of some of the recent Appellate Cases that Ford+Bergner has filed for its clients.

In our website, we have provided information regarding our Attorney Rates and Fees in Appellate cases. Should you have a need to pursue an appeal of a probate or guardianship case, please Contact Us so that we can discuss your case and advise you on the best methods for moving forward.