Property disputes among siblings after parents pass away are common. One brother wants to sell. Another wants to keep the family land. A third argues everyone should get equal value regardless of which parcel they receive. These conflicts often result in litigation when the property has unequal features—maybe one section has road frontage or commercial potential while another sits landlocked.
Texas recently enacted the Uniform Partition of Heirs’ Property Act to address some of these challenges. We are just now starting to see some of the disputes involving this new Act–including this last article we wrote about an executor being able to sell despite the Act. The Act provides specific procedures for dividing property among co-tenants who inherited through family relationships. However, the Act doesn’t give heirs a free pass to ignore what their parents actually wanted. When a valid will spells out exactly how property should be divided, those testamentary instructions control the outcome.
So what happens when heirs try to use the partition statute to override the specific distribution terms their father included in his will? Can beneficiaries ignore limiting language in a will simply because they prefer a different arrangement that might give them more valuable parcels? The recent case of Hernandez v. Hernandez, 2025 WL 2726534 (Tex. App.—Corpus Christi–Edinburg Sept. 25, 2025, no pet.), provides an opportunity to examine these questions.
Facts & Procedural History
Benito and Angelita had four sons: Noe, Ricardo, Joel, and Rene. In August 2018, the parents worked with their estate planning attorney to execute both a marital agreement and their wills. The marital agreement created a specific arrangement so that when the first spouse died, certain real property would pass entirely to the named heirs as if it were the separate property of the deceased spouse.
The wills devised property in two adjacent tracts. Lot 389 of would go entirely to Noe. Lot 390 and all improvements would be bequeathed to Ricardo, Joel, and Rene “in equal shares.” However, the will included specific limiting language that became the center of the dispute: “PROVIDED, HOWEVER, if this property is ever partitioned by the heirs, the portion going to Rene Angel Hernandez shall be the section that borders along Lot 389….” The eastern boundary of Lot 390 bordered Lot 389. A business operating a Casa de Cambio occupied the eastern portion of Lot 390.
Benito passed away in April 2020. The probate court admitted his will and appointed Noe as independent executor. In March 2022, Noe executed a special warranty deed conveying the estate’s entire interest in Lot 390 to Ricardo, Rene, and Joel. The attorney who drafted the will also drafted this first deed. However, the deed did not contain the limiting language from the will.
Rene filed a petition in the probate court requesting that the court “reform” the first deed to include the limiting language. He also filed a motion for summary judgment, which the probate court denied. Ricardo and Joel then filed an original petition in district court to partition Lot 390 under the Uniform Partition of Heirs’ Property Act. They argued the property qualified as “heirs’ property” under the statute and requested partition based on equal value rather than equal acreage.
Rene responded by claiming the property was not “heirs’ property” under the Act. He requested that the trial court partition the property in equal acreage according to the will’s terms. Specifically, he asked for the eastern one-third portion as the will directed.
In August 2023, Noe filed a “Corrected Special Warranty Deed” that included the limiting language. A different attorney drafted this corrected deed. The trial court held evidentiary hearings in October 2023. Noe testified that he did not know about the limiting language when he executed the first deed and absolutely did not intentionally omit it. He understood the limiting language to mean Rene would inherit the eastern part of Lot 390 adjacent to Lot 389. Noe acknowledged that as independent executor, he could not contradict any terms of his father’s will.
Ricardo testified that he received and read the will in February 2021 and was familiar with the limiting language. He admitted he did not notice when the first deed omitted this language. Ricardo worked as a commercial real estate broker for over thirty-five years and believed “equal shares” should mean “equal value.” Joel similarly testified that he believed equal shares equated to equal value.
The trial court entered judgment in November 2023 in favor of Rene. The court declared that the property was not “heirs’ property” governed by the Act. Instead, the will controlled the partition. The court ordered that Rene receive the eastern one-third of Lot 390 in kind, including all improvements, while Ricardo and Joel would receive the remaining two-thirds. Ricardo and Joel appealed, raising five issues about the trial court’s handling of their case and its interpretation of both the Act and the will.
The Uniform Partition of Heirs’ Property Act and Its Scope
The Texas Legislature recently enacted the Uniform Partition of Heirs’ Property Act to address specific problems that arise when family property passes through intestate succession or becomes divided among multiple relatives.
Before this Act, traditional partition procedures often forced the sale of family property even when some co-tenants wanted to keep it. The Act provides alternative procedures designed to preserve family property when possible and ensure fair treatment of all co-tenants.
The Act defines “heirs’ property” as real property held in tenancy in common that satisfies several requirements as of the filing of a partition action. First, there must be no agreement in a record binding all the co-tenants that governs the partition of the property. Second, one or more of the co-tenants must have acquired title from a relative, whether living or deceased. Third, at least 20 percent of the interests must be held by cotenants who are relatives, or by an individual who acquired title from a relative, or 20 percent or more of the cotenants must be relatives.
These definitional requirements reveal the Act’s intended scope. The statute targets situations where property has passed through family relationships but no binding agreement governs how it should be divided. When such property ends up owned by multiple family members as tenants in common, disputes often arise about whether to partition in kind or sell the property and divide proceeds.
The Act establishes procedures that differ from traditional partition rules. Under the Act, courts must order partition in kind under certain circumstances rather than forcing a sale. The statute requires appraisals to determine fair market value. It provides mechanisms for some co-tenants to buy out others at fair value. These procedures aim to prevent situations where family property gets sold at unfavorable prices simply because one co-tenant forces a partition by sale.
Thus, this remedy is useful when one party wants to buy the property. If all parties want to sell the property, then the traditional partition rules may be preferable.
When Does a Will Create a “Binding Agreement” That Excludes Property from the Act?
The first requirement for property to qualify as “heirs’ property” under the Act is that there be no agreement in a record binding all the co-tenants that governs the partition of the property. This requirement is particularly important when property passes through a will that contains specific instructions about how to divide it, as in this case.
In this case, Ricardo and Joel argued that Lot 390 satisfied all requirements of the Act’s definition of heirs’ property. They received their interests from their father. They were relatives. No separate partition agreement existed among the three brothers. Therefore, they contended, the Act’s procedures should govern how the trial court divided the property.
Rene argued the opposite. The will itself constituted a binding agreement that governed the partition. The will specifically stated that if the heirs ever partitioned the property, Rene’s portion would be the section bordering Lot 389. This language directly addressed partition and bound all the heirs receiving interests in the property.
The appellate court agreed with Rene’s position. The court explained that the Act does not provide that property may be partitioned in direct contravention of the manner in which that property is distributed via the terms of a will. A person may devise under a will all the estate, right, title, and interest in property the person has at the time of death. The testator may direct the disposition of property or an interest passing under the will.
The court noted that Section 405.0015 of the Texas Estates Code, enacted simultaneously with the Partition Act, grants independent executors broad discretionary powers to distribute property that may affect partition rights. Unless a will states otherwise, an independent executor may make distributions, allocate assets, value estate property, and adjust distribution. Here, the will directly governed the manner in which Lot 390 would be partitioned.
The court found that because there was “an agreement in a record binding all the cotenants that governs the partition of the property,” the Act did not apply. The will served as that binding agreement. All three brothers took their interests subject to the terms of that will. Those terms included the specific instruction about how partition would occur if the heirs chose to divide the property.
How Independent Executors Must Honor Testamentary Instructions
The role of the independent executor was an important secondary issue in this dispute. Noe, as independent executor, executed two different deeds conveying Lot 390 to his three brothers. The first deed omitted the limiting language from the will. The second deed included it. Ricardo and Joel argued that the first deed controlled and that Noe had already fulfilled his duties by executing it.
Texas law set out principles about independent executors and their obligations. An independent executor is duty bound to carry out the terms of the will. The independent administration of estates and the testator’s right to select an independent executor represent foundations of Texas law. Independent executors have significant powers, but those powers do not include the discretion to omit provisions from the decedent’s will.
Noe testified that he did not know the limiting language existed when he executed the first deed. The attorney who drafted both the will and the first deed failed to transfer the limiting language into the conveyance document. Noe stated he absolutely did not intentionally omit the provision. When he discovered the error, he retained a different attorney to draft the corrected deed that included the limiting language.
Noe understood that even though the will gave him substantial discretion as independent executor, it did not give him discretion to contradict his father’s testamentary instructions. He acknowledged that as executor, he was liable for negligence and breach of fiduciary duty. He expressed frustration that the situation had led to litigation when his role was to implement his parents’ true wishes.
The Texas Estates Code provides that any particular directions in the testator’s will regarding the sale or distribution of estate property shall be followed unless the directions have been annulled or suspended by court order. No such order existed here. The limiting language in the will remained in full force. Noe’s obligation as independent executor required him to honor those instructions when conveying the property to the beneficiaries.
The first deed’s omission of the limiting language did not eradicate Benito’s wishes regarding the distribution of Lot 390. An executor’s clerical error or oversight does not override the testamentary instructions themselves. The corrected deed properly implemented the will’s terms.
Must “Equal Shares” Mean “Equal Value” When Dividing Real Property?
Ricardo and Joel advanced a second major argument that focused on the phrase “equal shares” in the will. They contended this language required the trial court to partition Lot 390 based on equal value rather than equal acreage. Because the eastern portion bordering Lot 389 had commercial development and road access, it had greater value than interior portions of the tract. They argued that giving Rene one-third of the acreage that happened to contain the most valuable features violated the “equal shares” requirement.
The appellate court rejected this interpretation. When construing a will, Texas courts focus on the testator’s intent as ascertained by looking to the provisions of the instrument as a whole. Courts examine what the testator actually wrote rather than what the testator might have intended to write. Words are construed in their plain and usual sense. Courts construe the will to give effect to every part of it if the language reasonably permits such construction.
The will devised Lot 390 to Ricardo, Joel, and Rene “in equal shares.” However, the will also included the limiting language specifying that if the property was ever partitioned, Rene’s portion would be the section bordering Lot 389. These two provisions must be read together to determine Benito’s intent.
The limiting language demonstrated that Benito intended to devise a particular piece of Lot 390 to Rene without regard to its value relative to other pieces. The provision specified that Rene’s “portion” would be the “section” that “borders along” Lot 389. Because only one side bordered Lot 389, this language unambiguously identified the eastern one-third of the property.
Benito’s intent to devise his estate disproportionately in terms of value appeared further from his decision to bequeath the entirety of Lot 389 to Noe. The will did not divide all property equally among all four sons. Instead, it gave different property to different children based on Benito’s wishes.
The will nowhere stated that the parties should receive equal value. It did not mention value, appraisal, or any commercial considerations. If Benito intended for the sons to own Lot 390 in equal value rather than equal acreage, he could have articulated that intention. The only reasonable interpretation of the provisions together required Rene to receive the easternmost one-third of the lot regardless of whether that third had greater or lesser value than the remaining portions.
Ricardo and Joel argued that nothing in the will expressed clear intent to avoid partitioning Lot 390 in a manner that resulted in tracts of equal value. However, the court found this argument backwards. The burden was not on Rene to show that the testator wanted unequal value. Rather, the will’s plain language specified a particular geographic section for Rene. That language controlled.
The court noted that Ricardo’s commercial real estate expertise and his opinion about how property sales should work did not override the testamentary instructions. Joel’s citation to a case suggesting equal shares means equal value did not change the analysis because that general principle gives way to specific testamentary language directing a different result.
The Intersection of Probate Administration and Partition Actions
The case highlights broader questions about how probate administration interacts with partition statutes. Ricardo and Joel filed their partition action in district court while the estate was still under administration in the probate court. An independent executor had been appointed and was functioning under the will’s authority. The district court concluded that it not only had jurisdiction but was the proper venue even though there was a probate proceeding in the probate court even though all parties were beneficiaries of Benito’s estate receiving their interests through his will, the will expressly governed the partition of Lot 390, the probate court had admitted the will to probate, and the probate court had appointed Noe as independent executor of the will.
In addition to confirming the jurisdiction of the district court, the court also clarifies the relationship of this Act with the Texas Estates Code. The Texas Estates Code grants independent executors significant allocation powers unless the will provides otherwise. Section 405.008 provides that an independent executor may petition the probate court for a partition of property if the will does not distribute the entire estate. These provisions give the probate system and the independent executor primary authority over property distribution during estate administration.
The appellate court questioned whether the Partition Act should work this way with the Estates Code. The Partition Act was devised for property in intestate succession—situations where no will exists to direct distribution. Here, a valid will existed and remained under administration. The will contained specific instructions about distribution. Those instructions should control the outcome.
The court noted that another appellate court had questioned whether the Partition Act must be followed when an estate administration is pending. The statutory scheme of the Estates Code provides comprehensive procedures for distributing estate property according to a testator’s wishes. Allowing beneficiaries to bypass those procedures through a partition action in district court could undermine testamentary intent. This case seems to directly resolve that issue.
The Takeaway
When a valid will contains specific instructions about how property should be divided among beneficiaries, those testamentary provisions trump the general procedures of the Uniform Partition of Heirs’ Property Act. The Act applies to property that lacks a binding agreement governing partition. A will that directs how partition should occur serves as exactly such a binding agreement.
Beneficiaries cannot use the Partition Act to obtain a different distribution than their parents intended simply because they prefer a division based on value rather than the specific geographic arrangements the testator specified. When a will says one heir gets the eastern portion of a tract, that heir gets the eastern portion regardless of whether it has greater or lesser value than other portions. Independent executors remain bound to implement these testamentary instructions even if some beneficiaries object. The careful estate plan prevails over statutory default rules designed for situations where no such plan exists.
Our Dallas Probate Attorneys provide a full range of probate services to our clients, including helping with probate litigation and partition actions. Probate is what we do. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process.We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
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