In Tillotson Estate, the administrator of the testator’s estate submitted a motion to file a motion that the testator’s wife’s husband hand over the testator’s community property in certain accounts. 05-20-00258-CV, 2021 Text. LEXIS 2097 (Tex. App. – Dallas, March 18, 2021, no pets). After the first-instance court approved the motion, the surviving spouse appealed. The Court of Appeals first found that the administrator had the authority to apply for the division of community property:
The Property Code provides that at any time after the first anniversary of the date of the original will or administration, the executor, administrator, heir or designer of the estate may request the division and distribution of the estate by a written application filed with the court in which the estate is pending. You see Est. § 360.001 (a). The Property Code further provides that if a child outlives the deceased spouse, the undivided share of half of the deceased spouse in the community property passes to the children of the deceased spouse. See id. § 201.003… Accordingly, we conclude that Hoyl, in her capacity as administrator, could have requested the division of the community property and that the trial court did not err in granting Hoyl’s request for the division of the community property.
Id. The Court held that section 360.253 (a) of the Property Rights Act allows a surviving spouse to seek a barrier, but holds that this right does not make it exclusive to the surviving spouse.
The surviving spouse also claimed that he had the right to maintain possession and control of his property in the community that was legally under his management during the marriage. The court disagreed and noted that the Property Code provided that a surviving spouse had the right to retain possession and control of property in the community that was legally under the sole management of the surviving spouse during the marriage and to exercise any authorized property over that property. if there is no administration on the property of the deceased spouse. Id. (Refers to Tex. Est. Code § 453.009 (b)). The court held that this section applies only when there is no pending administration and that the trial court did not err in ordering the surviving spouse to hand over the amounts relating to the individual account of the Rollover IRA, Roth IRA and Fidelity shares.
Id. The Court of Appeals upheld the first-instance court’s order in part.