Untitled Texas Attorney General Opinion ( 1962 )

THEA~TORNEYGENERAL
OF TEXAS
Honorable Homer A. Davis Opinion No. WW-1335
County Attorney
Dalhart, Texas Re: Whether the County Judge
nay sign an order finding
that no inheritance tax
Is due by an estate where
a foreign will has been
filed in the Dallan County
Deed Records under Section
96 of the Probate Code but
has not been filed 'Inthe
Probate Records under Sec-
tion 95 of said Code, and
Dear Mr. Davis: related questions.
Section 96 of the Probate Code authorizes the filing
in the Deed Records of a Texas county of a will and the pro-
bate thereof, duly attested, from a foreign jurisdiction. The
foreign wlll~ls thus made effective as a nuninent of title.
Sections 98-9, Probate Code; Lane v. Miller, 176 S.W. 100 (Clv.
App. 1915 error ref.); Mason v. Rodriguez, 115 S.W. 868 (Civ.
APP. 1909).You advise that in your county It has been the
practice to file foreign wills in the Deed Records under said
statute. The question has been raised, however, as to the
authority of the County Judge to sign an order certifying that
no inheritance tax is due by such an estate when "the estate
does not have a probate number and is not technically in the
probate court." We are asked to resolve this question.
As an alternative to filing the foreign will in the
Deed Records, Section 95 of the Probate Code authorizes filing
an authenticated copy of the will and of its probate in the
foreign jurisdiction, together with an application for probate
thereof, In the County Court. This action effects the probate
of the will and authorizes sane to be recorded In the minutes.
Thus, Section 96 authorizes filing the will in the Deed Records,
while Section 95 authorizes filing sane in the Probate Court
Records, both records being kept by the County Clerk. The will
having been filed in the Deed Records, we are of the opinion
-- ._
Honorable Homer A. Davis, page 2 (WW-1335)
It need not be thereafter refiled in the Probate Records.
Abstract companies In preparing a chain of title include
both Probate and Deed Records, and a double recording In
the County Clerk's Office would appear to serve no useful
purpose. Assuming it Is unnecessary to qualify the for-
eign executor in Texas, we hold that a second recording is
even though an inheritance tax Is Involved.
````````~)of this opinion, we assume that the will named
Article 14.27 of the Tax Code (Title 122A, V.C.S.)
authorizes the Comptroller to "prescribe and furnish all
forms necessary In making the reports and collecting the tax."
Our attention has been called to the following form prepared
and long used by the State Comptroller:
"FORM NO. 30 - INHERITANCE TAX
DATE RECEIVED
PROBATE COURT NO.
CERTIFICATE OF COUNTY JUDGE WHERE
NO INHERITANCE TAX IS DUE
THE STATE OF TEXAS
IN RE: ESTATE OF
County of
On this the day of 19
cane on to be seesard and considered for'flnr'
determination the amount of Inheritance Tax due
the State of Texas by the Estate of
Deceased, and by the heirs and devlsees
under the'Wll1 of said decedent, and having duly
examined and duly considered the inventory and
reports filed herein by the Executors of said
Estate as well as the Will of said
Deceas,
ed, I find that under the laws
xas that there Is no Inheritance
f th Staie of Te:~
&ax dze said State by either the heirs, or devlsees
of said , Deceased, and
_I. .
Honorable Homer A. Davis, page 3 (WW-1335)
that this finding and conclusions be certl-
fled to the Comptroller of Public Accounts
of the State of Texas as well as entered upon
the Minutes of this Court.
County Judge County, Texas
APPROVED:
II
Comptroller of Public Accounts.
Under Article 14.16 of the Tax Code, the County
Judge, subject to the approval of the Comptroller, assesses
the tax. The primary source of Information as to the prop-
erty Included In the estate subject to the tax is contained
In certain reports required to be filed by the executor. Ar-
ticle 14.11 requires a preliminary report and Article 14.12
requires the executor to file within six months a sworn report
or inventory of the estate, which is to be "recorded as a
permanent record in the Probate Court." Since property in
this State belonging to the estate of a non-resident decedent
is subject to the Texas inheritance tax (Article 14.01), the
report aforesaid must be filed by executors of foreign, as
well as domestic, wills.
The requirement of Article 14.12 for the recording
of the inventory in the permanent records of the Probate Court
in effect initiates a proceeding In such court. Article 1942,
V.C.S., states that County Clerks shall be "keepers of the
records, books, papers and proceedings of their respective
courts in civil and criminal cases and in matters of probate,
and see that the sane are properly indexed, arranged and pre-
served. . . .'I The filing of an inventory in Probate Court
clearly being a phase in the administration of an estate of
a decedent, we are of the opinion that proper indexing and
arranging requires the clerk to docket and number such estate
in the Probate Court.
While the question may be debatable as to whether
the filing of such inventory in the Probate Court creates a
"suit," entitled to receive a number under Rule 23, Texas
Honorable Homer A. Davis, page 4 (WW-1335)
Rules of Civil Procedure, nevertheless, the practice Is
universal in all our courts to number all proceedings there-
in, simply as a matter of good Indexing and arrangement.
Attention Is called to the fact that no statute or court
rule requires numbering of proceedings before the Texas
Supreme Court; yet the clerk of that court very properly
assigns a number to each proceeding filed.
A probate proceeding being pending then in a for-
eign will case by virtue of the filing of the inventory in
the Probate Court, it is proper to file the order fixing the
tax, or finding none due, under the sane number. This is
strongly indicated by Article 14.21 which states that the
County Judge shall not "permit the delivery of any property
to the legatee or heir without first ascertaining whether or
not a tax is due . . . and if no tax is due, such fact must
be shown by an instrument in writing, approved by the State
Comptroller of Public Accounts, filed with the final papers
closing said estate." Concerning this requirement that the
tax proceedings be filed in the Probate Court with the other
papers of the estate, we see no reason to make a distinction
between the practice in a domestic will proceeding and In one
involving a foreign will.
We are not unmindful of the holding in State v.
O'Connor, 71 S.W.2d 306 (Clv.App. 1934, error ref..).at
case Involved the appealability to the District Court of the
report of the appraisers of a domestic estate. Such appraisal,
unless waived, is a step in the inheritance tax assessing pro-
cess. Article 14.15. If such were considered a probate
matter, the District Court would have appellate jurisdiction
thereof. Article V, Section 8, Tex.Const. The court, although
admitting the question "has by no means been without its diffi-
culties," held that the fixing of the tax was not a
matter, and hence an appeal to the District Court wou%i?% lie.
We do not find it necessary to pass upon the ques-
tion of whether the tax assessing process has since been
changed into a probate matter, although we point out that
legislative changes since the 1934 O'Connor decision indicate
that the Legislature nay now intend to make the fixing of the
tax a probate matter. The appraisal statute, incidentally,
was amended in 1939 and now provides for appeal to the Dis-
trict Court.
.., .
Honorable Homer A. Davis, page 5 (W-1335)
In 1955 the Probate Code was adopted, Section 3(bb)
thereof defining the words "probate matter' and "proceeding
in probate" as Including "a matter or Rroceeding relating to
the estate of a decedent . . . . Fixing the tax due
by's; estate appears to cone within this definition.
Article 14.26 was amended in 1945 so as to allow
the County Judge a fee on inheritance taxes collected to
"be taxed and collected as costs in probate cases." Thus,
the Legislature decreed that th f for services of the
County Judge "performed under t:e E%visions of this Chapter"
are now to be assessed as probate costs.
Whether the proceedings resulting in a finding that
no tax is due be labeled a tax matter or a probate matter,
suffice it to say that the papers Involved are in any event
filed in the Probate Court along with other papers on file
In the particular numbered and styled estate. Articles 14.12
and 14.21.
We are advised by the Comptroller's Office that the
mechanics of handling the matter under consideration are these:
The Comptroller examines the Inventory filed under Article
14.12, together with a copy of the will, to determine whether
the executor has made proper computations. As soon as he Is
satisfied that no tax is due, it is his practice to fill out
the form set out above, in duplicate, sign his approval, and
forward both copies to the County Judge for his signature,
one to be entered In the minutes of the Probate Court and the
other to be returned to the Comptroller for his files. The
Comptroller advises that this procedure has been followed and
this form used for over 32 years. Such departmental construc-
tion is entitled to great weight. Munne v. Marrs, 120 Tex.
383, 40 S.W.2d 31 (1931).
Article 1965, V.C.S., provides:
"The minutes of the proceedings
of each preceding day of the session
shall be read in open court . . . and
signed in open court by the County
Judge. Each special judge shall sign
the minutes of such proceedings as
were had before him. I . ."
We think the order of the court finding no tax due, whether
deemed a probate order or otherwise, is certainly a "proceeding"
. ..
Bonorable Homer A. Davis, Page 6 (WW-1335)
In a probate case. The order, therefore, Is required to be
included in the minutes of the Probate Court. This has been'
for many years the universal practice. Such judgments re-
flecting that no inheritance tax lien exists are of consider-
able importance to land lawyers and title companies. Un-
recorded filed papers are frequently lost. Recording said
order in the minutes gives this important title information
an enduring record.
The question is raised as to what effect the
handling in the Probate Court of the Inheritance tax pro-
ceedings relating to a foreign will would have on the court
costs. Our answer is that the costs would be minor. The
commission allowed the County Judge on "actual cash receipts"
(Article 3926, V.C.S.) would not be applicable, since it was
long ago decided in Willis v. Harvey, 26 S.W.2d 288 (Civ.App.
1930, error ref.) that such t did not include cash on
hand in the original corpus ofe?he estate. Assuming a waiver
of appointment of appraisers (Article 14.15) and and inven-
tory not of exceptional length, the total court costs of
handling the foreign estate in the manner above outlined
should be less than $10.00. See Article 3930, V.C.S., setting
forth the schedule of fees chargeable by the County Clerk.
SUMMARY
A probated foreign will recorded ,
In the Dallan County Deed Records under
Section 96 of the Probate Code need not
be again recorded in the Probate Records
under Section 95 of said Code as a pre-
requisite to the entry of an order by the
County Judge finding that no inheritance
tax Is due by said estate. The filing of
the invent0 by the executor as required
1 .12 of the Tax Code (Title
by Article "3;
122A, V.C.S.) requires the County Clerk
to docket and number such estate in the
.. . ~ .
Honorable Homer A. Davis, page 7 (WW-1335)
Probate Court. The order finding no tax
due should be filed with the papers in
such cause and recorded in the minutes of
the Probate Court.
Yours very truly,
WILL WILSON
Attorney General of Texas
. Arthur Sandlln
slstant Attorney General
JAS:afg
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Mays
Bill Allen
Jack Price
Frank Booth
REVIEWED FORTRE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.