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Hill v. Bartlette, 181 S.W.3d 541 (Tex. App.—Texarkana 2005, no pet. h.).

I.          ESTATE ADMINISTRATION

A.         Powers of Temporary Administrator

Temporary Administrator of Decedent’s estate signed a settlement agreement releasing Tortfeasor from all claims arising out of an accident which caused Decedent’s death.  Several years later, Mother sued Tortfeasor asserting wrongful death and survival claims.  The trial court granted summary judgment in favor of Tortfeasor.  Mother appealed.

The appellate court affirmed on two grounds.  First, the court held that the statute of limitations had run and that there was insufficient evidence to prove that Tortfeasor was equitably estopped from raising the defense.  Second, and more importantly from a probate perspective, the court agreed that the settlement agreement operated as an accord and satisfaction of both the wrongful death and survival claims.  Mother made several unsuccessful arguments that the settlement agreement was not binding.

·         Mother claimed that Temporary Administrator did not have the authority to settle the wrongful death claim because it belongs to the statutory beneficiaries and does not benefit the estate.  However, Civil Practice & Remedies Code § 71.004(c) gives an administrator the authority to pursue wrongful death actions on behalf of the statutory beneficiaries if they do not take action on their own within three months after a decedent’s death.

·         Mother asserted that Temporary Administrator lacked authority to settle claims on behalf of the estate.  The court quickly dismissed this argument by pointing to Probate Code § 234(a)(4) which gives the personal representative the power to make compromises and settlements.

·         The order appointing Temporary Administrator did not expressly grant authority to settle the survival and wrongful death claims.  Thus, Mother claimed the settlement agreement was not binding under Probate Code § 133.  The court rejected this argument by quoting the order which provided that Temporary Administrator had the authority to represent the estate and the heirs “in all necessary respects regarding any and all claims * * * against [Tortfeasor] * * * arising from [the accident which caused Decedent’s death].”

·         Mother claimed that the probate court lacked jurisdiction over wrongful death and survival claims.  The court recognized that the case law Mother cited to support her claim was out-of-date and that the Probate Code now gives probate courts such jurisdiction.

·         Mother did not sign the settlement agreement and has not received its proceeds.  The court explained that Mother’s signature was not necessary and that the proper distribution of the proceeds by Temporary Administrator is not Tortfeasor’s responsibility.

Note:  A concurring opinion points out that although Temporary Administrator had the authority to represent the estate, Probate Code § 234(a)(4) requires the personal representative to make a written application to the court and obtain an order specifically authorizing the settlement.

Moral:  To avoid difficulties, a personal representative who is not independent in nature should apply for and obtain a court order authorizing any settlement which the personal representative wishes to enter.

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