Responsibilities Of The Probate Clerk - Txcourts.gov
Responsibilities of theProbate ClerkPresented byThe Honorable Gladys BurwellSenior Statutory Probate JudgePrepared byThe Honorable Gladys BurwellSenior Statutory Probate JudgeChristy NisbettCourt Administrator / Staff AttorneyTravis County Probate Court No. 1&David FerrisCourt Services DirectorTravis County Clerk’s Office 2014Regional WorkshopTexas College of Probate JudgesMarch 13-14, 2014Sheraton Fort Worth Hotel & Spa – Downtown, Fort Worth, Texas
Clerk ResponsibilitiesTable of ContentsI.Introduction . 1II.Resources . 1III.Clerk and Court . 2IV.Filing Issues . 2A.B.C.D.E.F.G.H.I.J.K.L.M.N.O.Initial Filings – Civil Case Information Sheet . 2Initial Filings – Docket Numbers . 2Initial Filings – Addresses of Parties . 3Initial Filings – Social Security & Driver’s License Numbers on Pleadings in CourtsOther Than Statutory Probate Courts . 3New Filings – Guardianship Cases Transferred into County . 3Initial Filings – Miscellaneous Considerations . 3Parental Notification for Abortions Involving Minors . 4Fees . 4Fees in Guardianship Cases . 5Fees – First Responders . 5Fees – Armed Forces . 5No More References to the Court’s “Minutes” . 6Affidavit in Lieu of Inventory . 6Management Trusts . 6Confidential Records in Guardianship Proceedings . 6V.The Clerk’s Seal & Signature . 6VI.Recording, Indexing, and Imaging . 7VII. Issuance of Letters . 7A.B.C.D.E.What’s necessary before letters can be issued? . 7What do letters include? . 8Letters or certificate for temporary administrators or guardians . 8Renewing letters of guardianship . 8Miscellaneous notes about letters . 9VIII. Reporting Requirements for Probate, Guardianship, and Mental-Health Cases . 9A.All Probate, Guardianship, and Mental Health Cases: Office of Court AdministrationMonthly Reports . 9B. Probate Cases . 91. Voter registration . 92. Court-appointee fees of 500 or more . 9C. Guardianship Cases . 101. Voter registration . 102. Court-appointee fees of 500 or more . 103. Driver’s license . 104. Department of Public Safety monthly reports on incapacitated adults – federalfirearm reporting . 105. Private professional guardians . 106. Public guardianship programs . 11D. Mental Health Cases . 111. Driver’s license . 112. Department of Public Safety monthly reports on incapacitated adults – federalfirearm reporting . 11i
Clerk ResponsibilitiesE.F.IX.When a Physician is the Subject of a Guardianship or Mental Health Case . 11Funds in Registry Report . 11The Claims Docket . 11Decedents’ estates – “claims” definition & “claims docket” . 11Guardianships – “claims” definition & “claims docket” . 12Notice procedures for guardianships and decedents’ estates . 121. When a claim is presented . 122. When a claim is allowed or rejected, in whole or in part . 12A.B.C.X.Criminal History Records . 12XI.Electronic Filing . 13XII. Determining whether an ad Litem is Still Active on a Guardianship Case . 13XIII. Access to Mental-Health Files . 13XIV. Deposit of Will for Safekeeping during Testator’s Lifetime . 14XV. Duty and Liability of Custodian of Estate Papers after Testator’s Death . 14XVI. Jurisdiction . 15XVII. Transfer of Case for Want of Venue . 15A.B.Decedent’s Estate . 15Guardianship . 15XVIII. Vexatious Litigants . 16XIX. Funds in Registry of Court . 16A.B.C.D.E.F.G.Transfer of funds to separate accounts . 16W-9s and Taxes . 16Required reports and audits . 16Withdrawal or disbursement of funds . 17Interest and fees . 17Funds for unknown or missing persons on final account . 17Unclaimed funds . 17XX. Interlocutory Appeals in Statutory Probate Courts . 17XXI. Request to be Notified of all Pleadings in Guardianship Cases . 17Appendix A. Texas Attorney General Opinion No. JC-0323 (2001) . 19Appendix B. Civil Case Information Sheets . 23Appendix C. Presiding Statutory Probate Judge Administrative Order on Ancillary Cases,with Attached Instructions . 26Appendix D1. TRCP Rule 21c. Privacy Protection for Filed Documents . 28Appendix D2. Texas Attorney General Opinion No. GA-0519 (2007) . 28Appendix E. Conditional Filing . 37Appendix F. Texas Attorney General Opinion No. JC-0292 (2000). 38Appendix G. Travis County Clerk Civil, Probate, & Mental Health Fees, effective 1/1/2014 . 41Appendix H. Unsworn Declaration . 48ii
Clerk ResponsibilitiesAppendix I. Letters or Certificate for Temporary Administrators or Guardians . 49Appendix J. Miscellaneous required reports . 51Appendix K. Form Clerk files with Guardianship Certification Board/Program regardingPrivate Professional Guardians . 55Appendix L. Form the Guardianship Programs Should have Filed with the Clerk in January . 56Appendix M. Court’s Request for Criminal History Report from Guardianship CertificationBoard/Program . 58Appendix N. Texas Electronic-Filing . 59Appendix O. Office of Court Administration Official Monthly Reports and Other Materials . 62iii
Clerk ResponsibilitiesI.IntroductionIt is not possible to apply a one-size-fits-allapproach to probate procedures in the courts of Texas’s254 counties. Many of our courts have Local Rules,but others do not. Some counties use imaging whileothers use Volume and Page, and there are myriadvariations in between. Although each county isdifferent, the same basic rules apply no matter thecounty.Whether the court with probate jurisdiction inyour county is a constitutional county court, a countycourt-at-law, or a statutory probate court, one thingremains constant: the probate clerk is not allowed togive legal advice to its customers. However, you cansolve much frustration by simply pointing a customerto the appropriate section in the Texas Estates Code(“EC”), whether the customer is a member of thepublic or an attorney. One last time, we’ve given dualcitations in this paper, beginning with the EC cite,followed by the Probate Code cite in parentheses(“PC”).In this paper, we have tried to provide you with ageneral description of what is required by law. Eachcounty will have its own method of handling thedetails, and one method is not necessarily better thananother method.F.G. 18th Edition of Texas Laws Relating to MentalHealth, available through the DSHS website athttp://www.dshs.state.tx.us/mhrules/Texas Laws.shtm. Updated through 2011 legislative session.H. For Texas laws relating to intellectual disabilities(formerly mental retardation), see relevantsections of the 4th Edition of Texas Laws Relatingto DADS (Department of Aging and DisabilityServices), available athttp://www.dads.state.tx.us/rules/texas laws.htmlon the DADS website. Updated through the 2011legislative session. See the Probate Code sectionat the same link for laws relating to guardianships.The link also includes laws on these subjects inthe Criminal Code, Family Code, GovernmentCode, and Human Resources Code.II.ResourcesThere will always be new questions to answer,and the following resources may point you in the rightdirection of solving even the most obscure problem –updates of some of these are in process, so check formore-recent versions.A. Texas Estates Code. Multiple editions areavailable. The following two editions includehelpful commentary in addition to the code itselfand case annotations: Johanson’s Texas Estates Code Annotated,West Publishing. O’Connor’s Estates Code Plus, Jones McClurePublishing.Current editions include both the Estates Codeand the Probate Code.B.Texas Rules of Court.C.Local rules for the court with probate jurisdictionin your county.D. Texas Family Code.E.District Clerk Civil Filing Fees & District CourtCivil Suits, effective January 1, asp.(OCA has no current online list of court costs andfees for county clerks, except for criminal cases.)County Clerk Procedure Manual, December 2012Edition, published May 22, 2013, from the TexasOffice of Court Administration, is current throughthe 2011 legislative session and is available k/2012ccm.pdf.1I.An Analysis of the Texas Mental Health Code,Hogg Foundation for Mental Health.(512) 471-5041 or toll free (888) 404-4336.P.O. Box 7998, Austin, Texas 78713-7998.J.Helpful Internet websites:1. Texas . Texas Courts Online:http://www.courts.state.tx.us.3. Texas Constitution and Statutes:http://www.statutes.legis.state.tx.us/.4. Texas Legislature Online (links to proposedand enacted legislation).http://www.capitol.state.tx.us.5. Attorney General Opinions:http://www.oag.state.tx.us/opin/.6. Texas Office of Court 7. Texas Association of Counties:http://www.county.org.8. Most of the statutory probate courts havewebsites with links to local rules, fees, andother basic information that may be helpful.See, for example, the websites for the TravisCounty Probate Court set out belowor, more easily, Google the name of thestatutory probate sp
Clerk ResponsibilitiesIII. Clerk and CourtAlthough the County Clerk has the authority toadminister the clerk’s office as the clerk believesappropriate, the clerk may not exercise the authorityunilaterally, especially in matters affecting theadministration of justice in the courts the clerk serves.When the clerk exercises ministerial duties that affectthe administration of justice in the courts the clerkserves, the clerk is subject to the authority of thejudiciary.Thus, for example, the clerk can’t change thehours the clerk’s office is open to the public withoutthe permission of the courts the clerk serves. Op. Tex.Att’y Gen. No. JC-0323 (2001) (see Appendix A). Asnoted in that Attorney General Opinion, a county clerkis “subject to the authority of the judiciary” and“receives documents for filing on behalf of” a court.The Attorney General relied on the Texas SupremeCourt’s statement that “[t]he clerk is an officer of thecourt subject to the court’s direction and control inexercising ministerial duties . . . .” Stokes v. AberdeenIns. Co., 917 S.W.2d 267, 268 (Tex. 1996) (percuriam).Also see the Texas Supreme Court’s 1988decision upholding an order in which a district judgeheld a district clerk in contempt for failure to mailcopies of the trial docket to attorneys of record in casesin that court. Ex Parte Thomas P. Hughes, DistrictClerk of Tarrant County, 759 S.W.2d 118 (Tex. 1988).The Supreme Court said that “[i]t is important that thetrial court be vested with such powers as may bereasonably required to perform its judicial functions,protect its dignity and integrity, and make its lawfulactions effective.” Id. at 120.needs to accurately classify new cases for the county’sdatabase system. See Appendix B.Clerks can use the information on this form tocomplete the pro se block on the OCA reporting form.Initial Filings – Docket NumbersWhen an application for probate of a will,administration, guardianship, or any other openinginstrument is filed, the first step is to assign the nextconsecutive file or docket number. Tex. R. Civ. P. 23.Many counties use a different sequence of filingnumbers for cases on the mental-health docket becauseof confidentiality considerations required by Healthand Safety Code §571.013.An individual may have two probate causenumbers filed in association with his or her name, onein a guardianship and the other when the person’sestate is brought into probate.The method of court assignment is decided on acounty-by-county basis. Most counties with more thanone court hearing probate matters will handleassignments by rotating the courts in some manner.Subsequent pleadings or documents associatedwith an estate or guardianship are filed within theoriginal docket number. Any competing applicationsshould be consolidated into the application that wasfiled first.Counties differ in how they assign docketnumbers to actions that are related to an alreadyfiled cause of action, but are not part of that action.Some counties give such an action a completelydifferent number. Other counties give the new action adocket number that’s related to the original docketnumber, but differentiated in some way to denote adifferent cause of action (for example, with a subnumber). All pleadings associated with a particularcause of action must be filed within the docket numberassigned to that particular cause of action – whether thecause of action of the original petition, of a crosscomplaint, or of an ancillary action.The following is an example of multiple, relatedcauses of action: John Doe dies, and his will is probated. Thecause number for the probate of his will is12,345. His executors sue the doctor, hospital, andlaboratories for wrongful death. The docketnumber for the lawsui
Travis County Probate Court requires a supplementary information sheet that includes all codes the clerk needs to accurately classify new cases for the county’s database system. See Appendix B. Clerks can use the information on this form to complete the pro se block on the OCA reporting form. B. Initial Filings – Docket Numbers
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Rule 7.4. Waiver of rules in probate proceedings Rule 7.5. Waivers of court fees in decedents’ estates, conservatorships, and guardianships Rule 7.10. Ex parte communications in proceedings under the Probate Code and certain other proceedings Rule 7.1. Probate Rules The rules in this title may be referred to as the Probate Rules.
The Legal Framework of the Office of the Probate Judge The Administrative Functions of the Probate Judge The Judicial Functions of the Probate Judge The Functions of the Probate Judge as Chairman of the County Governing Body Alabama Law Institute The Law Revision Division of Legislative Services Agency www.lsa.state.al.us
