St. Mary's Law Journal


Joseph R. Marrs


Plaintiffs and defendants in tort litigation by or against a probate estate can be better-litigated in statutory probate court. Since the 1970s, Texas probate courts have steadily risen to power. The Texas Supreme Court attempted to curtail this practice in Seay v. Hall. The Texas legislature overruled Seay and continued to expanded the jurisdiction of statutory probate courts. Despite the continuing “merry dance” between the legislation and judicial review, the legitimate purpose of expanding lawsuits to probate court remains that of efficiently resolving lawsuits linked to guardianship or decedents’ estates while preserving all parties’ interests. The author uses an example to put forth a guide to getting a tort case into probate court: an unwed mother wants to bring a claim on behalf of her son against a hospital for damages. Generally, a parent can only file suit as “next friend.” The first step then is to establish guardianship.


St. Mary's University School of Law