In addressing either probate or guardianship litigation matters, two issues must be answered before any litigation can begin — 1) who are the appropriate parties to participate in the litigation, and 2) which court is the appropriate venue to pursue the litigation.

Interested Persons
Section 3(r) of the Texas Probate Code defines interested persons, which are the people who may generally participate in either a probate or guardianship litigation proceeding. Interested persons under this section generally include those persons who are beneficiaries under a Will, heirs at law, children of an incapacitated person, and parents/siblings of incapacitated persons. Additionally, the Probate Code allows a general provision in some cases for any other person who might have an interest in the matter to participate in the proceeding.

Example: Sam died in Houston and was survived by his wife, Sandra, and his 3 children from a previous marriage, Adam, Barbara, and Carol. Sam’s Will left his entire estate to his wife, but Adam, Barbara, Carol, and Dexter (Sam’s best friend from childhood) decide to contest the Will.

In the example above, Sandra, Adam, Barbara, and Carol are all interested persons under the Probate Code because they either receive a bequest under the Will, or they are heirs of Sam’s at law as if he died without a Will. Dexter, however, does not stand to benefit from Sam’s estate in any way, and he is therefore not an interested person who could contest the Will.

Types of Courts
Because Texas is a very diverse state, three different types of courts can actually hear probate or guardianship matters. In the larger counties (Harris, Dallas, Tarrant, Bexar, Travis, El Paso, etc.), the Texas Legislature has created Probate Courts. These Courts are specially designated to hear only probate, guardianship, and trust cases. As a result, these courts are very specialized in the work that they do, which hopefully ensures the quality of the decisions and the efficiency with which these courts accomplish their tasks.

In other counties, the county might have a County Court-at-Law, which is also a court created by the Legislature to hear cases. However, these courts not only hear probate and guardianship matters, but they also hear criminal cases, civil cases, etc. As a result, these courts are not as specialized in the probate arena. Like the County Courts-at-Law, some counties only have a Constitutional County Court that hears probate matters. Unlike the Courts-at-Law, the Constitutional County Court is created by the Texas Constitution, and it has very general authority to hear a wide variety of cases. The Judge of a Constitutional County Court does not have to be an attorney, which can sometimes cause problems if a contest arises in the case.

Venue
In order to insure fairness and access in the appropriate county to the Courts in which a probate or guardianship matter might be heard, the Probate Code lays out very specific provisions related to what courts can hear these matters. Generally, the Court in the county where the Decedent or the Ward lives or owns real estate is the appropriate county for such an action. Additionally, the case can be heard in the county in which the Decedent died or in which a Ward is located at the time the guardianship action is initiated.

It is important to note that any probate or guardianship litigation matter that is filed in a county that does not qualify under the Probate Code provisions as an appropriate venue for the case is subject to being dismissed because the Court does not have the proper jurisdiction to hear the case.