A plane crash in Texas kills two people. One victim’s widow seeks to file a wrongful death claim against the other victim’s estate. The statute of limitations is about to expire. However, no probate administration has been started in Texas to provide someone who can accept service of process. The decedent was a California resident, and his will has been probated there. Can a Texas court appoint a temporary administrator to receive citation in the wrongful death case?
This scenario presents a common dilemma in probate practice. Claimants with time-sensitive causes of action need a way to pursue their claims before the statute of limitations expires. However, estates are not always opened where accidents occur. Decedents may reside in other states where their wills are probated. Texas law provides a mechanism for temporary administration to address these situations, but the requirements for appointing a temporary administrator are specific.
The question is whether Texas courts can appoint temporary administrators when the decedent died testate in another state and what level of compliance with statutory requirements is necessary to sustain such appointments. The Texas Supreme Court’s decision in Nelson v. Neal, 787 S.W.2d 343 (Tex. 1990), addresses these questions and illustrates the balance between procedural requirements and practical necessity in probate administration.
Facts & Procedural History
On December 31, 1985, Nelson and Bobby were killed in a plane crash in Bowie County, Texas. Nelson was a California resident. Phyllis, Bobby’s widow, filed a wrongful death claim in federal court against Nelson’s estate. Nelson’s estate took no action to open an administration in Texas.
Almost two years after the crash, Neal sought to have G.W. Lavender appointed as temporary administrator of Nelson’s estate pursuant to Section 131A of the Texas Probate Code (which is now the Texas Estates Code). Neal’s application for temporary administration stated that she was unaware of the existence of any will. She alleged the necessity of temporary administration based upon wrongful death claims by her and her children against Nelson’s estate.
On December 23, 1987, Neal successfully obtained the appointment of a temporary administrator to secure an agent for service of process. The statute of limitations on her wrongful death claim would run on December 31, 1987. The temporary administrator’s appointment gave Neal someone to serve with citation in her lawsuit.
Gunnar Nelson, Nelson’s son, contested Lavender’s appointment on grounds that Nelson did not die intestate. Nelson’s estate alleged that an executor had been duly qualified under a will admitted to probate in California, rendering any appointment of a temporary administrator improper. A contested hearing was held on January 13, 1988. The probate court denied the request to set aside the temporary administrator’s appointment. The court of appeals affirmed. The Texas Supreme Court granted review.
The Necessity Requirement Under Section 131A
Section 131A(b)(2) of the Texas Probate Code requires that the verified application for appointment of a temporary administrator include “facts showing an immediate necessity for the appointment of a temporary administrator.” In her application, Neal alleged an immediate necessity because a policy of liability insurance covered the airplane crash and was present in Nelson’s estate. This insurance policy could be depleted if other judgment creditors were allowed to reach it before Neal could actuate coverage by timely serving her claim on a qualified personal representative.
Nelson’s estate relied on Piper v. Estate of Thompson, 546 S.W.2d 341 (Tex. Civ. App.—Dallas 1976, no writ), arguing that an administration is necessary only when there are estate assets subject to administration in Texas and at least two debts are to be satisfied out of the assets. Nelson’s estate maintained that the trial court lacked jurisdiction to appoint an administrator because there were no such assets.
The court of appeals rejected this argument, relying on Davis v. Cayton, 214 S.W.2d 801 (Tex. Civ. App.—Amarillo 1948, no writ). That case held that a liability insurance policy which may be applicable to wrongful death claims is an asset which supports an administration in Texas. The Supreme Court agreed with this analysis.
Section 178(b) of the Texas Probate Code provides that no administration of any estate shall be granted unless there exists a necessity therefor. Such necessity shall be deemed to exist if two or more debts exist against the estate. However, the statute does not mandate the existence of two or more debts as the only basis for finding necessity. Rather, it provides that when two or more debts exist, a necessity for administration shall be deemed to exist.
The court characterized the wrongful death action by Neal and the one she asserted on behalf of her children as separate debts. These claims could both be brought independently of each other. Judgment in one would not bar recovery in the other. Thus, the two claims made by Neal constituted two debts against the estate, thereby creating a necessity for an administration in Texas.
The Intestacy Requirement Under Section 131A
Section 131A(b) specifically provides that the application for appointment of a temporary administrator must include the information required by Section 82 of the Probate Code. Section 82(b) requires “the name and intestacy of the decedent.” Since a will was admitted to probate in California, the inquiry became whether Eric Nelson died testate in Texas.
In her application for appointment of a temporary administrator, Neal stated that “applicant is unaware of any will left by Decedent, as all records regarding the Decedent’s estate in California have been sealed by the court.” Nelson’s estate urged that a mere allegation of lack of knowledge is not tantamount to the unequivocal averment that the deceased died intestate as required by sections 82 and 131A.
Neal maintained that her statement was tantamount to an assertion that she had no knowledge that there was a will. She argued that the statement could not be construed except as a statement that decedent was intestate. Neal attempted to obtain copies of documents related to Nelson’s estate from the clerk of the probate court in Los Angeles but was informed that the documents sought were sealed. Although she was required to swear under oath pursuant to Section 131A that Eric Nelson died intestate, she could not unequivocally swear that Eric Nelson died without a will.
The burden of proving intestacy under oath was difficult to meet as the records from the California probate court were sealed. The records were sealed at the request of Eric Nelson’s estate. Yet Gunnar Nelson contended that Neal failed to discharge her burden under Section 131A because she was unable to make an unequivocal statement under oath about information unavailable to her.
The Supreme Court concluded that Neal’s statement fulfilled the requirement in Section 82(b) that an applicant state the intestacy of the decedent. The court reasoned that when records are sealed and unavailable, requiring an unequivocal sworn statement would create an impossible burden. Neal had attempted to obtain the relevant information but was prevented from doing so by circumstances beyond her control.
The Nature of the Contested Hearing
Under Section 131A(h)(1) of the Probate Code, any person interested in the decedent’s estate may contest the temporary administrator’s appointment by requesting a hearing within fifteen days of the appointment. Section 131A(i) provides that if requested, a hearing shall be held not later than the tenth day after the date the request was made. However, the Probate Code does not specify the nature of the hearing on the contest.
The purpose for empowering temporary administrators was to provide a mechanism by which the assets of an intestate decedent’s estate could be preserved until delivered into the control of a permanent administrator. Section 131A in the probate context serves the same purpose as a temporary injunction—to preserve the status quo.
The appointment of a temporary administrator is voidable if shown to be improper by the contesting party. Accordingly, Nelson’s estate had the burden to contest the probate court’s appointment. Since Nelson’s estate had no opportunity to contest the initial appointment, the burden to show necessity of the temporary administration did not shift to Nelson’s estate. Rather, this burden to show necessity remained with Neal.
The probate court’s granting of the temporary administration was prima facie evidence that it found a necessity for appointing a temporary administrator. Therefore, Neal met her burden to show such necessity. At the Section 131A hearing, although the attorneys made statements about evidentiary matters, neither party proffered nor sought to admit any evidence. Exhibits tendered but not admitted into evidence are not part of the record and cannot be considered on appeal.
Additionally, neither the contest of the application for appointment of a temporary administrator nor the response to the contest was sworn to. Therefore, the only evidence in the record was the unrebutted prima facie showing that a temporary administration was necessary. There was nothing in the record from which the court could determine that the trial court erred in making the appointment.
The Relationship Between Texas and Foreign Administrations
The court below relied on King v. King, 230 S.W.2d 335 (Tex. Civ. App.—Amarillo 1950, writ ref’d), where an appellant appealed from an order appointing a temporary administrator of an estate over which an independent executor already had full power and authority. The court in King held that there cannot be two legal administrations of an estate pending at the same time.
The Supreme Court found the facts in King distinguishable. When Neal applied for the appointment of a temporary administrator, she did not know that Nelson’s will had been admitted to probate in California. Therefore, the situation was not the same as King, where a temporary administrator was appointed with knowledge that an administration with full power and authority already existed.
However, the Supreme Court noted that the court of appeals incorrectly interpreted the King opinion. The appellate court stated that King permits a temporary administrator to be appointed in Texas even if an administration exists in another state. The Supreme Court disagreed with this interpretation. Rather, King stands for the proposition that a temporary administrator can be appointed “only in the event that there did not then already exist another administration with full powers.” Nowhere in the King opinion does the court state that Texas will refuse to honor an independent administration that exists within another state.
This clarification is important. The Supreme Court did not hold that Texas courts may appoint temporary administrators even when full administrations exist elsewhere. Instead, the court held that Neal’s appointment was proper because she did not know about the California probate when she filed her application. The appointment became voidable once evidence of the California administration came to light, but it was not void from the beginning.
The Dissenting Opinion’s Concerns
Chief Justice Phillips, joined by Justices Gonzalez and Hecht, dissented. The dissent argued that Neal failed to meet her burden of proof because she did not unequivocally swear to Nelson’s intestacy as required by Section 131A. Texas law dictates that unless authorized by statute, an affidavit is insufficient unless the allegations are direct and unequivocal. An affidavit that swears to facts “to the best of the affiant’s knowledge or belief” will not suffice.
The dissent contended that the majority excused Neal’s failure to comply with affidavit requirements merely because it was difficult to obtain information. The unavailability of information or the difficulty of obtaining information does not necessarily excuse an affiant from the burden of accurately swearing under oath to information required by statute. The dissent characterized this as the first instance in Texas jurisprudence where a verification imposed by statute has been judicially excused.
The dissent noted that the very fact that Nelson’s estate had sealed the probate proceedings in California suggested the existence of a will in California. Neal should have taken further steps beyond simply asking the county clerk to verify Nelson’s intestacy. She never inquired as to who was the administrator or executor of the estate. She never directly asked the estate or the estate’s counsel about the existence of a will.
However, the dissent agreed that the temporary appointment was not void at the time Neal served process. Section 131A(i) provides that during the pendency of a contest of the appointment of a temporary administrator, the temporary appointee shall continue to act as administrator. A judgment is void only if the court rendering judgment had no jurisdiction. Neal’s failure to comply with affidavit requirements did not deprive the probate court of jurisdiction.
The dissent concluded that once the estate filed its contest, Neal had the burden to show necessity for a temporary administration. Because Neal failed to introduce any evidence at the contested hearing, she failed to meet her burden and the probate court should have overturned the temporary appointment.
The Takeaway
The Nelson v. Neal decision establishes that Texas courts may appoint temporary administrators to facilitate service of process in wrongful death and other time-sensitive claims even when the decedent was a resident of another state. Once a temporary administrator is appointed, the appointment creates prima facie evidence of necessity that shifts the burden to the contesting party to present evidence showing the appointment was improper. However, the appointment is voidable rather than void if the application contains deficiencies, meaning it remains effective until successfully challenged.
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