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Declarations Relating to Trust or Estate

Declarations Relating to Trust or Estate For a San Antonio Probate Attorney.


Declaratory Judgments for Texas Fiduciary Lawyers

The Texas Civil Practice and Remedies Code Chapter 37 outlines Texas declaratory judgments. However, the important section for a San Antonio probate attorney is section 37.005. It is one of the primary sources of declaratory relief related to declaratory judgments in probate court.

Declaration Rights in Respect to a Texas Trust or Estate

A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal relations in respect to the trust or estate for the following reasons:

  1. to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others
  2. to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity
  3. to determine any question arising in the administration of the trust or estate including questions of construction of wills and other writings
  4. to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts1

The relief provided here is quite broad, and arguably encompasses most, if not all, questions that would relate to estates and/or trusts for a San Antonio probate attorney.

In one of the earlier appellate decisions in probate courts related to this section, the court held that the trustees were “entitled to have speedily determined [their questions]” because the questions presented would resolve whether further actions on the fiduciaries part would be based upon uncertainty and would be potentially risky to all involved.2 This case should be considered by a San Antonio probate attorney when pressing for a prompt summary judgment ruling based on a legal question (as opposed to fact).

These sections are not intended to limit the questions that may be presented for a declaration, but are illustrative.3 The courts may make declarations in many contexts that will terminate the controversy and remove an uncertainty.

Texas Will Contest Example for a San Antonio Probate Attorney

The most recent case under §37.005 as of the date of this writing is Stern v. Marshall. The well-known dispute involved the reputedly $100 million estate of J. Howard Marshall and the disputes pursued by his late widow Anna Nicole Smith and her Texas probate attorneys for the past 20 years.

During the trial, but before Smith’s nonsuit without prejudice of her claims, the Marshall defendants added claims for declaratory relief and for sanctions. The relief sought a declaration that Smith had no right to J. Howard Marshall’s property and that she had no agreement or contract for half of his estate. Smith’s estate, and its Texas probate lawyers argued that it was reversible error to permit the declaratory judgment to proceed because Smith had threatened no litigation since her nonsuit and since the conclusion of other litigation in California in which she recovered against Pierce Marshall individually for claims involving tortious interference with an inter vivos gift. The Texas trust and estate lawyers looked at the claims for declaratory relief as they related to the matters that “remained pending in the probate court, rather than, as [Smith] urges – as it relates to [Smith’s] nonsuited claims.”4

The Courts Conclusion

“Vickie is Marshall’s widow and was one of his three surviving heirs. The Marshall defendants’ requested declaration that “Vickie Lynn Marshall has no right to estate property of J. Howard Marshall II” and that she “had no agreement or contract for half of J. Howard Marshall II’s estate” falls within the plain meaning of the Act’s provisions allowing declaratory judgment claims to determine each interested party’s rights and how to properly and comprehensively administer Marshall II’s estate. Stern’s protestations that Vickie had opted to only pursue tort claims to recover in a different forum does not vitiate the probate court’s broad ability to adjudicate claims and resolve questions related to the administration of an estate.”
Id. at 521.

The reviewing court ultimately held that the trial court did not make a mistake in concluding that a proper request for declaratory relief was presented.

1 Tex. Civ. Prac. & Rem. Code § 37.005(1-4)
2 Kimble v. Baker, 285 S.W.2d 425, 429 (Tex. Civ. App. – Eastland 1955, no writ)
3 Tex. Civ. Prac. & Rem. Code § 37.003(c); Supak v. Zboril, 56 S.W.3d 785, 792 (Tex. App. – Houston [14th Dist.] 2001, no pet.)
4 Stern v. Marshall, 471 S.W.3d 498, 519 (Tex. App. – Houston [1st Dist.] 2015, no pet.)


James Carter | Texas Will Contest Lawyer

James W. Carter

James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.