Those who possess a will for a decedent often just file the will for probate, with little thought to others who may want or even be entitled to notice.
For example, a son might file paperwork to probate his father’s will and gets himself appointed as the executor. Months later, the decedent’s other children might find out the will has been probated without their knowledge as they were not notified that probate had been initiated.
This raises an important question about Texas probate procedure. When does someone named or referenced in a will have the right to notice of probate proceedings? The answer isn’t always straightforward, particularly when the will mentions family members in a decision-making capacity but doesn’t explicitly leave them property.
This was what the court addressed in Powell v. Smith, 2025 WL 2857105 (Tex. App.—Austin 2025, no pet.). In the case, the court considers whether siblings who were not notified of probate proceedings had to be notified when they were mentioned in their late brother’s will but the will did not provide for any transfers of property to them.
Facts & Procedural History
Bryan died in 2022. He left behind a handwritten will executed in January 1998. His survivors included his son, Smith, and his two siblings, James and AlRae.
The will’s terms were straightforward in some respects but ambiguous in others. Bryan gave his mother power of attorney as of the will’s execution date. He directed that after expenses, all remaining funds should go to his son. The will also gave his car to his son, with any loan balance to be paid from estate funds. Then came the provision that would lead to the probate dispute: “Everything else shall be divided up and/or disposed of as the Family see fit. No fighting or other unpleasantness is allowed.”
In mid-2022, the son filed an application for probate of his father’s holographic will. He also sought appointment as independent administrator under Section 401.002(b) of the Texas Estates Code. This statute allows all distributees to collectively agree on independent administration and designate someone to serve in that role.
The son’s application included a statement that would also the focus of the later probate litigation. It declared that the son was the only distributee of the estate and the only person required to receive notice under Section 401.004 of the Texas Estates Code. The application said this sole distributee would file a waiver of notice and consent to the application for independent administration.
The trial court signed an order in September 2022 admitting the will to probate and granting letters of independent administration. The court found that although the will did not provide for independent administration, the distributee had requested it as required by statute. The court appointed the son as independent administrator to serve without bond.
Two months later, the siblings filed a motion to vacate the appointment. They alleged they had not been notified of the application. They argued they had not agreed to appoint the son as independent administrator without bond. The siblings contended that the will’s language directing the family to divide up “everything else” made them distributees who should have received notice.
The siblings also sought declaratory relief under the Texas Uniform Declaratory Judgments Act. They asked the court to declare that they were beneficiaries under the will based on the “Family” language.
After litigation over the court’s continuing jurisdiction, the trial court vacated its earlier appointment order in April 2024. The court stated there was a genuine dispute regarding construction of the will’s dispositive language. Following an evidentiary hearing in July 2024, the court declared the son to be the sole devisee under the will. It then reappointed him as independent administrator.
Notice Requirements Under the Texas Estates Code
The Texas Estates Code provides specific requirements for who gets notice when someone files an application to probate a will. These requirements ensure that people with legal interests in an estate have the opportunity to participate in proceedings that affect their rights.
Section 401.002(b) governs situations where a will does not name an executor or the named executor is unwilling or unable to serve. In those circumstances, all distributees may collectively agree on the advisability of independent administration. They can then designate a qualified person to serve as independent administrator.
Section 401.004 specifies the notice requirements when distributees seek independent administration under Section 401.002(b). The statute requires that notice be provided to persons interested in the estate as required by law. This connects to the broader notice provisions in the Texas Estates Code governing applications for probate.
The purpose behind these notice requirements is to protect others interest given the broad powers given to independent administrators. An independent administrator can act without court supervision in most matters. This person can sell estate property, pay debts, and make distributions without obtaining court approval for each transaction. The streamlined nature of independent administration makes it efficient but also increases the importance of ensuring proper parties receive notice.
Texas law generally requires that applications for probate include a request for citation to issue to all persons having an interest in the estate. The application has to list all distributees of the estate. This ensures that anyone who might receive property under the will has notice and can object if they believe the application contains errors.
Who Qualifies as a “Distributee” Entitled to Notice?
This gets to the question in this case. Who qualifies as a distributee under the notice rules?
The Texas Estates Code defines “distributee” in Section 22.015. The statute sasy that a distributee is a person entitled to a part of the estate of a decedent.
A person becomes entitled to part of an estate through testamentary disposition. The Texas Estates Code defines “devise” in Section 22.008 as a testamentary disposition of real property, personal property, or both. This means a will must actually transfer property to someone for that person to qualify as a distributee entitled to notice.
The distinction between being named in a will and receiving property under a will is important here. A will might mention family members in various capacities without leaving them property. Someone might be named as executor, trustee, or advisor. The will might direct these individuals to perform certain tasks or make certain decisions. Yet unless the will actually transfers property to them, they do not become distributees under the statutory definition.
This distinction walks the line between protecting the efficiency of probate proceedings while safeguarding the rights of actual beneficiaries. Thinking about it, if everyone mentioned in a will had to receive notice, the process could become unwieldy. An executor might need to track down distant relatives named in passing. People with no financial interest in the estate would receive formal notice.
However, the line between mentioning someone and leaving them property can blur. Consider a will that directs “the family” to make decisions about property distribution. Does this create an interest in the estate that triggers notice requirements? The answer depends on whether the provision constitutes a testamentary disposition.
The “Everything Else” Provision in Bryan’s Will
The provision at issue in this case stated: “Everything else shall be divided up and/or disposed of as the Family see fit.” The siblings argued this language made them distributees entitled to notice because they were part of “the Family” who would divide up the remaining property.
The Court of Appeals rejected this argument. The court held that regardless of whether the testator intended the term “Family” to include the siblings, the provision did not constitute a testamentary disposition to any identified devisee. Instead, the clause directed “the Family” to divide up or dispose of everything else as they saw fit.
The court emphasized that the will directed the family to determine how to distribute or dispose of the remaining property. This was fundamentally different from the testator making a testamentary disposition of property to the siblings. The will gave the family a task rather than transferring property to them.
The court noted that the siblings might ultimately come into possession of some of the decedent’s property if the family saw fit to distribute it to them. However, this possibility did not make them devisees under the will. Their potential to receive property depended on future decisions by the family, not on a testamentary disposition made by the testator.
The Takeaway
The general rule is that when someone files an application for probate or seeks appointment as independent administrator, they have to identify who qualifies as a distributee entitled to notice. This determination requires analyzing whether the will makes testamentary dispositions to the persons in question. As this case shows, being mentioned in a will does not itself create an interest requiring notice. The will must actually transfer property to someone for that person to become a distributee.
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