St. Mary's Law Journal


Providing for probate court jurisdiction to accommodate all types of probate issues would lead to a more efficient probate system in terms of cost, time, and judicial economy. However, the constitutional and statutory constraints establish serious limits on probate jurisdiction. The 1973 legislature adopted a major revision to section 5 of the Probate Code to simplify and clarify probate jurisdiction by reorganizing the probate court system. In the four subsequent revisions to section 5 of the Probate Code, the issue of whether to distinguish the phrases “appertaining to an estate” and “incident to an estate” arose. These subsequent amendments continued to expand the authority encompassed by “incident to an estate” to enlarge the scope of jurisdiction in all courts exercising original probate jurisdiction. However, the phrase “appertaining to an estate” had relatively static development. The language of section 5A and the legislative history of the amendment are the strongest indications that “appertaining to an estate” and “incident to an estate” are interchangeable. However, interpretive case law reflects that the Texas Supreme Court distinguishes the meaning of the two phrases. Moreover, this narrow construction of the two phrases’ distinguished meanings appears to be inconsistent with the intent of the drafter of the 1973 section 5 revisions. The 1973 legislature directly addressed the problems facing probate jurisdiction and developed a system which accommodated four court systems, improved judicial economy, and saved litigants time and money. Yet the present case law reflects the conflicts resulting from the various amendments to the Probate Code due to the lack of a probate court jurisdiction that can accommodate all types of probate issues.


St. Mary's University School of Law