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Trusts and Estates No. 01-01-00656-CV, 4/17/2003. Click here for the full text of this decision FACTS: This is an appeal from a summary judgment rendered in favor of appellees, Winn-Coleman Inc. (WCI), B.W. Moore, and Peter Workin, and against appellant, Marilyn M. Coleman. The central issue in this case is whether a surviving spouse is required to obtain a judicial declaration of heirship to sue to recover community property in the form of a promissory note made payable solely to the deceased spouse. HOLDING: Reversed and remanded. Section 48 of the Probate Code provides, in relevant part, that, when a person dies intestate owning personal property and there has been no administration of the estate in this state, the court of the county in which the property is found may declare “who are the heirs and only heirs of such decedent, and their respective shares and interests” in the decedent’s estate. It follows that, when ownership of property of the deceased is determined by operation of law, heirship proceedings serve no purpose. The court, therefore, must determine whether Marilyn Coleman is the owner of the Promissory Note by operation of law. Section 45 of the Texas Probate Code provides: “(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if: (1) no child or other descendent of the deceased spouse survives the deceased spouse; or (2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.” Section 155 of the Code provides, “When a husband or wife dies intestate and the community property passes to the survivor, no administration thereon, community or otherwise, shall be necessary.” The record establishes that Marilyn Coleman is the surviving spouse of Earl Coleman, who died intestate, and that all children of Earl Coleman are also children of Marilyn Coleman. If the Promissory Note was part of the community property estate of the deceased spouse, Earl Coleman, it passed by operation of law to Marilyn Coleman upon his death and no administration thereon was necessary. The court must determine, therefore, whether the Note was community property. Community property consists of property, other than separate property, that is acquired by either spouse during marriage. A spouse’s separate property consists of the property owned or claimed by that spouse before marriage, or acquired by the spouse during marriage by gift, devise, or descent, or recovered for personal injuries sustained by the spouse during marriage. Subsection 3.003(a) of the Family Code provides: “(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. (b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.” The presumption, established by �3.003 of the Family Code, that property possessed by either spouse during or on dissolution of marriage is community property applies to dissolution of marriage by death as well as by divorce. To overcome the presumption, a party must present clear and convincing evidence that the property is separate property. To identify property as separate, the evidence must generally trace and clearly identify it as such. The evidence in this case establishes that the promissory note was acquired by Earl Coleman during marriage in exchange for his interest in Winn-Coleman, which likewise was acquired during marriage. Because the note was still possessed by Earl Coleman at the time of his death, it was presumptively community property. To rebut that presumption, appellees had to establish by clear and convincing evidence that the Note was Earl Coleman’s separate property. Appellees produced no evidence clearly identifying the Note as separate property. The court finds, therefore, that the promissory note is community property. It must next determine whether Marilyn Coleman, as the surviving spouse of Earl Coleman, is entitled to sue to recover on the Note. Section 160 of the Probate Code provides: “When no one has qualified as executor or administrator of the estate of a deceased spouse, the surviving spouse, whether the husband or wife, as the surviving partner of the marital partnership, without qualifying as community administrator as hereinafter provided, has power to sue and be sued for the recovery of community property; to sell, mortgage, lease and otherwise dispose of community property for the purpose of paying community debts; to collect claims due to the community estate; and has such other powers as shall be necessary to preserve the community property, discharge community obligations and wind up community affairs.” Marilyn Coleman was the surviving spouse of the decedent, Earl Coleman, who died intestate. Ownership of the promissory note, therefore, passed to her. No one was qualified as administrator of Earl Coleman’s estate, nor was administration necessary. Under the plain language of section 160 of the Probate Code, Marilyn Coleman, as surviving spouse, has the power to sue for the recovery of community property without qualifying as community administrator and to collect claims due the community estate. Since the Note is community property, her powers include the power to sue to recover under the Note and to collect any other claims due the community estate. Because the court finds that the Promissory Note is community property and Marilyn Coleman, as the surviving spouse of Earl Coleman, is entitled to sue to recover on it and to collect any other claims due to the community estate, it holds that the trial court erred in entering final summary judgment against Marilyn Coleman and dismissing her claims with prejudice. OPINION: Keyes, J; Taft, Keyes and Higley, JJ.

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