How to challenge or dismiss a petition for possession and control of estate property in Texas

Short answer: If someone files a petition asking to take possession or control of estate property in a Texas probate case, you can challenge that petition by (1) confirming whether the filer has legal standing and proper notice, (2) filing written objections or an answer and any threshold motions (for example, a motion to dismiss for lack of jurisdiction or improper service), (3) seeking emergency relief if property is at risk, and (4) using discovery and a hearing to develop and present your position. The exact documents and strategy depend on the petition’s grounds, the probate status, and whether the petitioner is an executor, independent administrator, claimant, creditor, or third party.

Disclaimer: This is general information only and not legal advice. I am not a lawyer. If you have a specific case, consult a Texas probate attorney.

Detailed answer — what you need to know and do under Texas law

1. Understand what the petitioner is asking and who can file

Petitions to take possession or control of estate property commonly ask the court to authorize a personal representative (executor or administrator), a temporary custodian, or a claimant to collect, remove, or manage estate assets. Under Texas law, probate and estate administration rules are in the Texas Estates Code. The court generally acts only for “interested persons” (heirs, beneficiaries, creditors, or appointed representatives). Review the petition to learn the legal basis (e.g., appointment of an administrator, turnover of specific property, temporary possession pending administration).

Helpful official resource: Texas Estates Code (probate & estate administration) — https://statutes.capitol.texas.gov/

2. Confirm standing, proper service, venue, and jurisdiction

Common procedural defenses that can defeat or limit a petition include:

• Lack of standing: The petitioner must be an “interested person” or otherwise statutorily authorized to request possession or control.
• Improper service: Parties who must receive notice may not have been properly served with the petition or notice of hearing.
• Wrong venue: The case may be filed in the wrong county.
• Jurisdictional problems: If the probate court lacks authority over the property or the parties, the petition can be dismissed.

If you identify one of these defects, you can raise it immediately by filing a written motion or an answer asserting the defect and asking the court to dismiss or limit relief.

3. Immediate steps: answer, object, or move to dismiss

Typical immediate filings a respondent can use:

• Answer or written response: A clear written answer states your position, admits or denies factual allegations, and preserves defenses.
• Motion to dismiss: If the petition fails to state a claim, is jurisdictionally defective, or the petitioner lacks standing, ask the court to dismiss.
• Special exceptions: If the petition is vague, ambiguous, or not particular enough about the property alleged to be estate property, ask the court to require a more definite statement.

4. Protect property at risk: temporary orders and emergency relief

If the petitioner is attempting to take possession or remove property immediately, consider asking the court for expedited relief:

• Temporary restraining order (TRO) or temporary injunction: Ask the court to stop removal or transfer of assets while the dispute proceeds. Courts grant emergency relief when irreparable harm exists and security or bond requirements are met.
• Request for bond, inventory, or receiver: Ask the court to require the petitioner to post a bond, file an inventory, or appoint a neutral receiver to safeguard assets.

Procedural rules governing emergency remedies are part of the Texas rules of procedure and trial practice—consult local rules and the court’s probate rules early.

5. Use discovery and a hearing to build your case

Once you’ve preserved your defenses, use these tools:

• Requests for disclosure and production: Obtain deeds, inventories, accountings, wills, title records, and communications that show who owns or controls the property.
• Depositions and interrogatories: Question the petitioner and witnesses under oath about the basis for possession and the chain of title.
• Expert reports: If title, valuation, or fiduciary conduct is contested, expert testimony can be critical.

6. Substantive defenses to possession/control requests

Common substantive bases to oppose the petition include:

• The property is not estate property (it belongs to a surviving co-owner or nonprobate trust).
• The petitioner has not been properly appointed as personal representative or authorized in the will.
• Fraud, undue influence, or forgery in support of the petitioner’s claim.
• Claims by creditors, secured parties, or third parties that create competing rights to the assets.
• Failure to provide a required bond, inventory, or accounting under probate rules.

7. Hearing, ruling, and appeals

The court will hold a hearing where both sides present evidence and legal argument. If the court grants possession, it may impose conditions (bond, accounting, limited authority). If you lose the hearing, you can generally seek appellate review. Appeals in probate matters have distinct rules and tight deadlines—act quickly and consult a lawyer to preserve appellate rights.

8. When to hire a Texas probate attorney

Get a lawyer if:

• Large or unusual assets are at risk.
• There are allegations of fraud or misconduct.
• Multiple claimants or creditors dispute title or priority.
• You need emergency relief (TRO/injunction) or anticipate appeal.

Helpful hints

• Read the petition carefully: note the legal basis, requested relief, and the listed assets. This determines your response.
• Act fast: probate courts move quickly when estate property is at risk. Preserve evidence and file provisional motions early.
• Preserve objections in writing: oral objections at hearings without a written filing often fail to preserve claims for appeal.
• Gather documents: deeds, title records, wills, trust documents, bank statements, and prior inventories are crucial.
• Check service: if you were not properly served, raise that to delay or dismiss improper actions.
• Consider mediation: some probate disputes resolve faster and cheaper through alternative dispute resolution.
• When asking for emergency relief, expect the court to require a bond or security to protect the opposing party if injunctive relief is granted.
• Keep a timeline of events and communications; judges rely on clear chronological facts.
• Remember deadlines: probate and appellate timelines can be short. Missed deadlines can waive important rights.

Where to find Texas statutes and local rules

Primary Texas statutes for probate and estate administration are in the Texas Estates Code: https://statutes.capitol.texas.gov/

Procedural rules and court resources are available from the Texas judiciary: https://www.txcourts.gov/

Final note

Challenging or dismissing a petition for possession and control of estate property requires both procedural and substantive responses. Start by confirming standing and service, file timely written defenses, seek emergency relief where necessary, and use discovery and hearings to prove your case. If the stakes are meaningful, consult a probate attorney licensed in Texas to ensure your rights are preserved.