Time to Modernize (even more): Why Texas Should Authorize the Probate of Wills by Submission

Or does the Estates Code already allow it?

Jul 28, 2025

The procedural practice of probate law has evolved dramatically since 2020, yet our statutory framework still lags behind, despite many recent advancements. While my court's innovative One-Minute Prove-Up streamlines uncontested hearings to probate wills through pre-filed testimony, and remote hearings have become standard practice across Texas, we're operating within a legal framework that most courts interpret to require in-person testimony for what should be the most straightforward probate matters.

The solution isn't technological—it's legislative. Texas should amend the Estates Code to explicitly authorize the probate of uncontested wills by submission, thereby aligning the decedent's section of the code with existing guardianship procedures and acknowledging the reality of modern practice.

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The Statutory Problem

The Texas Estates Code already provides the framework for hearing guardianship matters by submission. Section 1055.051 allows courts to consider applications and motions without oral argument unless the proceeding is contested or involves appointing a guardian.¹ This sensible approach recognizes that uncontested, routine matters rarely require the full ceremony of live testimony.

Author’s Note: It makes sense that the appointment of a guardian may not be done by submission. Taking away an individual’s rights and automony is complex and requires serious consideration of the unique issues. By comparison, the uncontested probate of a will is routine and formulaic.

Yet no parallel provision exists for decedents' estates. Section 256.157 begins with the predicate "all testimony taken in open court," which raises questions about whether certain testimony can be taken outside of open court proceedings. The various deposition provisions in other sections appear to apply primarily to witnesses (more about this later in the article) rather than to applicants providing "Proof of Death and Other Facts." Therefore, it has been the understanding of courts that witnesses may testify by deposition, but the applicant must appear in person to give testimony.

Further, Section 256.157 mandates that testimony in hearings to probate a will must be "committed to writing at the time the testimony is taken," "subscribed and sworn to in open court by the witness," and "filed by the clerk."² Most courts interpret this language to exclude probate by submission, though notably, a small minority of counties do allow uncontested probate on submission. This inconsistent practice across jurisdictions demonstrates precisely why we need clear statutory guidance.

The statute next creates a peculiar inconsistency that further supports the need for clarification. Section 256.157(b) allows courts to waive these documentation requirements—but only in contested cases, and even on the court's own motion without party agreement.³

This creates an odd hierarchy: courts have discretion to waive formal testimony requirements in contested cases (presumably the most serious matters requiring careful scrutiny), but lack that same discretion in routine, uncontested cases where no one disputes the proposed evidence. The statute essentially mandates more formality for cases with no opposition than for cases with actual legal disputes.

How Remote Hearings Revealed the Possibility

The COVID-19 pandemic accelerated changes that were already overdue. Harris County Probate Courts, along with all state and county courts, shut down in March 2020, but protecting estates and vulnerable people in guardianships couldn't wait for new rules. We took exactly one week to reschedule all hearings and transition everything to remote proceedings—a complete transformation from our previous in-person practice.

Operating under emergency orders from the Texas Supreme Court, probate courts across the state discovered they could conduct efficient, effective hearings without requiring physical presence. The Supreme Court didn't adopt permanent Rule 21d until February 2023,⁴ but by then, most practitioners preferred remote hearings for routine matters, and many courts accommodate this preference as standard practice today.

This practical experience during COVID revealed something important: we've been accommodating practices that may not strictly comply with statutory requirements. Section 256.157(a) requires that all testimony taken in open court be: (1) committed to writing at the time the testimony is taken; (2) subscribed and sworn to in open court by the witness; and (3) filed by the clerk.

In remote proceedings to probate a will, we're doing none of these three things as the statute requires. The testimony isn't committed to writing during the hearing—it's usually prepared in advance. The "Proof of Death and Other Facts" isn't subscribed and sworn to in open court—applicants and witnesses typically sign and notarize these documents after the hearing in the attorney's office. And the clerk doesn't file the testimony contemporaneously—it's electronically filed later by the attorney.

This comprehensive departure from Section 256.157's requirements demonstrates that we've already accepted the practical reality that rigid adherence to these formalities isn't necessary for effective probate proceedings.

We've created a workaround that serves everyone's interests but may not strictly comply with the statute. Rather than continue this informal accommodation, we should modernize the law to match current practice.

The Existing Statutory Framework Points the Way

The Statutes already contain procedures for certain deposition testimony. Sections 256.153, 256.154, and 256.156 all explicitly authorize testimony by deposition on written questions for attested wills, holographic wills, and wills not producible in court.⁵ However, each provision focuses narrowly on witness depositions—testimony from subscribing witnesses, handwriting witnesses, or those who can identify the will's contents.

Section 256.155 breaks this pattern.⁶ Ostensibly addressing procedures for uncontested cases, it employs slightly different language. Rather than limiting depositions to witness testimony, Section 256.155(b) authorizes "depositions for the purpose of establishing a will"—a formulation that invites broader interpretation.

The procedural mechanics seem straightforward enough. When no opposing party or attorney exists to receive notice and interrogatories, Section 256.155 incorporates Section 51.203's posting requirements: notice of intention to take depositions, accompanied by interrogatories, must be posted for ten days. If no one appears to oppose, the judge may file cross-interrogatories, and the depositions may proceed.

But that expansive language—"for the purpose of establishing a will"—suggests possibilities beyond traditional witness testimony. Could such depositions encompass the applicant's own testimony for the "Proof of Death and Other Facts"? The statutory framework could be interpreted to contain every piece needed for submission hearings—except the express authorization that would parallel the guardianship provisions.

Learning from Innovation

My court's One-Minute Prove-Up demonstrates how pre-filed testimony can streamline uncontested cases without sacrificing legal rigor. Attorneys file the proposed order, proof of death and other facts, and oath at least seven days before the hearing. The court reviews these documents in advance, and the actual hearing requires only brief confirmatory questions.⁷

This process works precisely because the substantive testimony has been reduced to writing and reviewed before the hearing. The oral component serves primarily to authenticate what's already been filed—exactly what a submission hearing would accomplish without requiring anyone's physical or virtual presence.

The One-Minute Prove-Up's success illustrates a broader principle: when cases are truly uncontested and all required documentation has been properly filed, the traditional hearing format adds little beyond procedural formality.

Addressing Professional Concerns

Skeptics of this approach raise several legitimate concerns that deserve substantive responses:

Solemnity and Respect for the Deceased: Some argue that probate proceedings require the gravitas of live testimony to ensure proper respect for the deceased's wishes. But solemnity doesn't require physical presence. The requirement that testimony be sworn and properly notarized maintains the proceeding's serious character while improving efficiency. On the other hand, attorneys can always opt for a live in-person or remote hearing if they choose.

Truth-Telling and Perjury Prevention: Critics might contend that face-to-face testimony better ensures honesty and allows courts to assess credibility. Yet perjury remains perjury whether committed in person or in a written deposition. Courts regularly rely on affidavits and depositions in countless other contexts without compromising truth-seeking functions.

Due Process Requirements: The essence of due process is notice and an opportunity to be heard. Submission hearings preserve both. Citation and notice requirements remain unchanged, and any interested party retains the right to contest the proceeding, which would remove it from submission consideration entirely.

Implementation and Practical Benefits

The efficiency gains extend beyond obvious time savings. Attorneys can handle more cases efficiently, reducing costs for clients. Courts can process routine matters more quickly, freeing judicial resources for contested cases that truly require live proceedings.

The potential downside deserves acknowledgment: preparing deposition testimony, waiting 10 days after posting before taking the written deposition may require more upfront work and take more time than appearing for a brief hearing. Some practitioners might prefer the simplicity of live testimony, even if it requires physical presence.

But this trade-off seems worthwhile given the broader benefits. Attorneys already prepare similar documentation in the form of the proof of death and other facts. The additional effort of formalizing this preparation into deposition format and posting would be modest for most experienced practitioners and would likely improve the quality of case preparation overall.

How it Might Work in Practice

Simultaneously file:
1. The Application to Probate a Will and for Letters Testamentary
  1. Request posting (10 days plus a Monday)
2. Notice of Intention to Take Deposition on Written Questions
  1. Request posting (10 days plus a Monday)
File the original will with the Clerk within 3 days (TRCP 21(f)(12)).
After the return date (which should be the same for both)
1. Execute the Deposition on Written Questions, which should contain the same questions as the “Proof of Death and Other Facts.”
2. If the Judge issues cross-interrogatories, make sure those are completed as well.
3. Instruct the deposition officer (can be a notary) to send the original DWQs to the court in a sealed envelope (this procedure may change), and electronically file a copy of the DWQ’s.
Set the matter on submission
1. Make sure to file a proposed order
Once the court signs the order, file the Oath and request Letters Testamentary.

A Modest Legislative Proposal

Texas should add a provision to the decedent's portion of the Estates Code mirroring Section 1055.051's guardianship language. The amendment might read:

"A court may consider by submission an application for the probate of a will unless the proceeding is contested."

Additionally, Section 256.157 would need revision to accommodate submission proceedings as well as current remote proceedings. The statute could be amended to read:

"All testimony on the hearing of an application to probate a will must be either: (1) taken in open court and reduced to writing, subscribed and sworn to by the witness, and filed with the court immediately following the proceeding and before requesting letters testamentary or letters of administration; or (2) taken by deposition, orally or on written questions, in accordance with this title when the application is considered by submission under Section [new provision]."

Author’s Note: Even if the legislature declines to clarify the statutes to expressly allow probate on submission, they should at least adopt subparagraph (1) above to reflect the universally adopted procedures for remote hearings—that sworn testimony is e-filed after the hearing and before Letters can be issued.

This language would explicitly authorize what some courts already accommodate while preserving judicial discretion for unusual circumstances. Courts would retain discretion to remove matters from the submission docket if they prove deficient or if the judge determines that additional testimony beyond what was provided is necessary.

The provision should apply to uncontested probate of all will types: self-proved wills, attested wills, holographic wills, and copies of wills not producible in court. Each category already has statutory provisions allowing witness testimony by deposition on written questions, making them suitable for submission proceedings.

Conclusion

Legal innovation shouldn't require workarounds that skirt statutory language, however well-intentioned. The Texas Legislature should embrace the practical reality that has emerged from remote practice, explicitly authorizing probate by submission for uncontested matters.

While courts almost universally still require live testimony—either in the courtroom or via remote appearance—the widespread adoption of remote hearings has revealed that strict compliance with Section 256.157's documentation requirements is no longer practical. Very few courts have adopted probate by submission precisely because the overwhelming prevailing interpretation of the statute requires live testimony, at least from the applicant.

But if we're already accommodating the practical impossibility of contemporaneous documentation in remote hearings, the logical next step is authorizing submission proceedings where appropriate.

While there's a good faith argument that the current statute could be interpreted to allow consideration of uncontested probate on submission—particularly given Section 256.155's broad language authorizing "depositions for the purpose of establishing a will"—legislative clarification would eliminate uncertainty and provide clear guidance to courts statewide.

This change wouldn't mandate submission hearings—it would simply provide another tool for courts and attorneys to manage their time efficiently. Contested cases would continue requiring full hearings. Complex matters would remain subject to traditional procedures. But routine, uncontested probates could proceed through submission when appropriate.

It's time for the Estates Code to catch up with modern practice.

Jerry's Prudence

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