## THEA~TORNEYGENERAL OF TEXAS

Honorable Homer CountyAttorney Dalhart, Texas

Dear Mr. Davis:A. Davis Opinion No.WW-1335
Re: Whether the County Judge nay sign an order finding that no inheritancetax Is due by an estatewhere 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 ProbateRecords under Section 95 of said Code, and related questions. Section

## 96of the Probate Code authorizes the filing in the Deed Records of a Texas county of a will and the probate thereof,duly attested, from a foreign jurisdiction. The foreign wlll~ls thusmade 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 advisethat in your county It has been the practice to file foreign wills in the Deed Recordsunder said statute. The question has been raised, however,as to the authority of the County Judge to sign an order certifyingthat no inheritancetax is due by such an estatewhen "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 foreignwill 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,togetherwith 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

## 96authorizes filing the will in the Deed Records, while Section 95 authorizes filing sane in the Probate Court Records,both recordsbeing kept by the County Clerk. The will havingbeen filed in the Deed Records,we are of the opinion-- ._

Honorable HomerA. Davis, page 2 (WW-1335)

It need not be thereafter refiled in the Probate Records. Abstract companies In preparinga chain of title include both Probateand Deed Records, and a double recording In the County Clerk's Officewould appear to serveno useful purpose. Assuming it Is unnecessary to qualify the foreign executor in Texas,we hold that a second recording is

even though an inheritancetax 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 Comptrollerto "prescribeand furnish all forms necessary Inmaking the reports and collectingthe tax." Our attentionhas been called to the following form prepared and long used by the State Comptroller:

"FORMNO.

## 30- INHERITANCETAX

DATE RECEIVED PROBATE COURT NO. CERTIFICATE OF COUNTY JUDGEWHERE NO INHERITANCETAX ISDUE
THE STATE OF TEXAS IN RE: ESTATE OF County of
On this the day of 

## 19 cane on to be seesard and consideredfor'flnr' determination the amount of InheritanceTax 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 consideredthe inventoryand reports filed herein by the Executors of said Estate as well as the Will of said ed, I find that under the laws xas that there Is no Inheritance Deceas, 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 conclusionsbe certlfled to the Comptroller of PublicAccounts of the State of Texas as well as enteredupon the Minutes of this Court.

County Judge County, Texas
APPROVED: II Comptroller of PublicAccounts.

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 Informationas to the property Included In the estate subject to the tax is contained In certain reports required to be filed by the executor. Article 14.11 requires a preliminary report and Article 14.12 requires the executor to file within sixmonths a sworn report or inventory of the estate,which is to be "recordedas a permanent record in the Probate Court." Since property in this State belonging to the estate of a non-residentdecedent is subject to the Texas inheritancetax (Article 14.01), the report aforesaidmust 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 initiatesa proceeding In such court. Article 1942, V.C.S., states that County Clerks shallbe "keepers of the records,books, papers and proceedings of their respective courts in civil and criminal casesand inmatters of probate, and see that the sane are properly indexed,arranged and preserved.

. . .'IThe filing of an inventory in Probate Court clearlybeing a phase in the administration of an estate of a decedent,we are of the opinion that proper indexingand arranging requires the clerk to docket and number such estate in the Probate Court.

While the questionmay be debatableas to whether the filing of such inventory in the Probate Court creates a "suit," entitled to receive a number under Rule 23, TexasHonorable Homer A. Davis, page 4 (WW-1335)

Rules of Civil Procedure,nevertheless,the practice Is universal in all our courts to number all proceedings therein, simplyas a matter of good Indexingand arrangement. Attention Is called to the fact that no statute or court rule requiresnumbering of proceedingsbefore the Texas Supreme Court;yet the clerk of that court very properly assigns a number to each proceeding filed.

A probate proceedingbeing pending then in a foreignwill 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 sanenumber. This is strongly indicatedby Article 14.21which states that the County Judge shallnot "permitthe delivery of any property to the legatee or heir without first ascertainingwhether or not a tax is due

. . .and if no tax is due, such fact must be shownby an instrument in writing, approvedby the State Comptroller of PublicAccounts, filed with the final papers closing said estate." Concerning this requirement that the tax proceedingsbe filed in the Probate Courtwith the other papers of the estate,we see no reason to make a distinction between the practice in a domesticwill proceedingand In one involvinga 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 inheritancetax assessingprocess. Article 14.15. If suchwere considereda probate matter, the District Court would have appellate jurisdiction thereof. ArticleV, Section 8, Tex.Const. The court,although admitting the question "hasby no means been without its difficulties," held that the fixing of the tax was not a matter, %i?% lie.

and hence an appeal to the District Courtwou We do not find it necessary to pass upon the question of whether the tax assessingprocess has sincebeen changed into a probatematter, althoughwe point out that legislative changes since the 1934 O'Connor decision indicate that the Legislaturenay now intend tomake the fixing of the tax a probatematter. The appraisal statute, incidentally, was amended in 1939 and now provides for appeal to the District Court..., .

Honorable Homer A. Davis, page 5 (W-1335)

In 1955 the Probate Codewas adopted, Section 3(bb) thereof defining the words "probatematter' and "proceeding in probate" as Including "amatter or Rroceeding relating to the estate of a decedent

. . . . Fixing the tax due by's; estate appears to conewithin 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 collectedas costs in probate cases." Thus, the Legislaturedecreed that th f for services of the County Judge "performedunder 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 labeleda tax matter or a probatematter, suffice it to say that the papers Involvedare in any event filed in the Probate Court along with otherpapers on file In the particularnumbered and styled estate. Articles 14.12 and 14.21.

We are advised by the Comptroller'sOffice that the mechanics of handling thematter under considerationare these: The Comptroller examines the Inventoryfiled underArticle 14.12, togetherwith a copy of the will, to determinewhether the executor hasmade proper computations. As soon as he Is satisfiedthat 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 theminutes of the Probate Court and the other to be returned to the Comptrollerfor his files. The Comptrolleradvises that this procedurehas been followed and this form used for over 32 years. Such departmental construction is entitled to great weight. Munne v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931).

Article 1965, V.C.S., provides: "Theminutes of the proceedings of each precedingday of the session shall be read in open court
. . .and signed in open court by the County Judge. Each special judge shall sign theminutes of such proceedingsas were had before him. I
. ."
We think the order of the court finding no tax due, whether deemed a probate order or otherwise, is certainlya "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 universalpractice. Such judgmentsreflecting that no inheritancetax lien exists are of considerable importanceto land lawyersand title companies. Unrecorded filed papers are frequently lost. Recording said order in theminutes gives this important title information an enduring record.

The question is raised as to what effect the handling in the Probate Court of the Inheritancetax proceedings relating to a foreignwill would have on the court costs. Our answer is that the costswould be minor. The commissionallowed the County Judge on "actual cash receipts" (Article3926, V.C.S.)would not be applicable, since it was long ago decided inWillis 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 inventory not of exceptional length, the total court costs of handling the foreign estate in themanner above outlined shouldbe less than $10.00. SeeArticle 3930, V.C.S., setting forth the schedule of fees chargeableby 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 prerequisite to the entry of an orderby the County Judge finding that no inheritance tax Is due by said estate. The filing of the invent0"3;

by the executor as required by Article 1 .12 of the Tax Code (Title 122A,V.C.S.) requires the County Clerk to docket and number such estate in the.. . ~ .

HonorableHomer A. Davis, page 7 (WW-1335)

Probate Court. The order finding no tax due shouldbe filed with the papers in such cause and recorded in theminutes of the Probate Court.
Yours very truly,
WILL WILSON Attorney General of Texas

.Arthur Sandlln slstantAttorney General JAS:afg

OPINION COMMITTEE W. V. Geppert, Chairman Howard Mays Bill Allen Jack Price Frank Booth
REVIEWEDFORTRE ATTORNEY GENERAL BY: HoughtonBrownlee, Jr.