THEA~TORNEYGENERAL 

OF TEXAS 

Honorable Homer 

County Attorney 

Dalhart, Texas 

Dear Mr. Davis: 

A. Davis Opinion No. WW-1335 

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 'In the 

Probate Records under Section 95 of said Code, and 

related questions. 

Section 96 of 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 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 foreign 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 

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 conclusions be certlfled 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 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 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 preserved. . . .'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 therein, 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 foreign 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 process. 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 difficulties," 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 question 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 District 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 construction 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 reflecting that no inheritance tax lien exists are of considerable importance to land lawyers and title companies. Unrecorded 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 proceedings 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 inventory 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 prerequisite 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 

"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 
. . . ~ . 

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.