When a parent dies and a new spouse takes control of the estate, the adult children from the first marriage usually assume they get a say. They are the decedent’s children, after all. So they file something in the probate court objecting to the new spouse serving as executor — and get told they have no right to be heard at all.
That outcome turns on a single question: is the objecting child an “interested person” under the Texas Estates Code? The answer is not about biology or fairness. It comes down to whether that person stands to gain or lose something from the probate of the will itself. And when the estate plan runs the property through a revocable trust instead of the will, the answer can be no — even for a child the will names by name.
That is what happened in Estate of David Wayne McCulloch, Deceased, No. 02-25-00036-CV (Tex. App.—Fort Worth Mar. 5, 2026, mem. op.). A son objected to his stepmother’s appointment as independent executor after she amended the family trust to cut him out. The court never reached whether the amendment was proper. It held the son lacked standing to object in the first place, and affirmed the dismissal of his opposition.
Facts & Procedural History
David McCulloch died on August 14, 2022. He was survived by his wife, Vicki, and three sons: Kevin, from his first marriage to Linda, and Timothy and Bradley, his sons with Vicki.
David’s will was a pour-over will. It left his one-half interest in all community property and all of his separate property to the “David and Vicki McCulloch Trust,” a revocable trust he and Vicki had created together. The will named Vicki as independent executor, with Timothy and Bradley as successor independent co-executors if she ceased or failed to serve. The will recognized Kevin as one of David’s three living children. It did not leave him anything, and it did not name him as a successor executor.
On September 1, 2023 — about a year after David died — Vicki signed a document called the “First Amendment to the David and Vicki McCulloch Living Trust Agreement, A Revocable Trust.” She signed it as the surviving Co-Grantor and Co-Trustee of the trust, and the trust’s own terms authorized her to do it. The First Amendment revoked the two distributions the original trust had directed to the Kevin Wayne McCulloch Trust, a separate trust the original trust had created for Kevin’s benefit. In one document, Kevin’s interest was gone.
What happened next explains why the will got probated at all. Vicki — on behalf of the trust and the estate — sued Kevin, his mother Linda, and Buster Bramall, a friend of David’s, for theft and conversion. That lawsuit made Kevin ask a fair question: had David’s will ever actually been probated, and did Vicki have authority to sue on the estate’s behalf? Kevin alleged that his challenge is what prompted Vicki to file her “Application for Probate of Will and Issuance of Letters Testamentary” on May 20, 2024.
Ten days later, Kevin filed his opposition. He argued Vicki had a conflict of interest and was disqualified from serving under Section 304.003 of the Texas Estates Code, and he asked the court to appoint a dependent administrator with will annexed instead. His theory was that Vicki had amended the trust in violation of her authority under that same instrument, which made her “unsuitable” to serve. He also challenged Timothy and Bradley as successor co-executors.
In September 2024, Vicki — joined by Timothy and Bradley — filed a plea to the jurisdiction and a motion to dismiss. Their argument was narrow and procedural: Kevin was not an “interested person” under Sections 301.101 and 22.018 of the Estates Code, so he had no right to file an opposition at all. He was not a beneficiary, a spouse, a creditor, or a person with any property right or claim against the estate.
Kevin’s response argued he was an heir and a vested beneficiary of a trust created for his benefit. His key move was conditional: if the First Amendment was invalid, then he was a vested beneficiary of an irrevocable trust, and that interest made him an interested person in the probate case.
Probate Court No. 1 in Tarrant County held a hearing on October 2, 2024, granted the plea and motion, and dismissed Kevin’s opposition in its entirety. Vicki was appointed independent executor, and David’s will was admitted to probate on October 30, 2024. Kevin filed two motions for new trial. Both were denied. He appealed.
Who Counts as an “Interested Person” in a Texas Probate Case?
To understand why Kevin lost before anyone looked at the merits, we first have to look at who the Estates Code lets through the courthouse door.
Section 301.101 provides that “[a]n interested person may, at any time before an application for letters of administration is granted, file an opposition to the application in writing.” So to challenge who serves as executor, you have to be an interested person. Section 22.018 defines that term as “an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered.”
This is not a box-checking exercise. Standing is part of subject-matter jurisdiction in Texas, which means a probate court has no power to hear an objection from someone who does not qualify — no matter how sympathetic the objection sounds. And the order of operations is fixed. As the Texas Supreme Court put it in In re Estate of Johnson, “[i]n a will contest, a probate court addresses the standing question first.” Get standing wrong and the case is over before the merits are ever discussed.
Kevin took two runs at the definition. He said he was an “heir,” and he said he had a pecuniary interest in the estate. Both terms mean something narrower than they sound.
Start with “heir.” Section 22.015 defines an heir as “a person who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate.” Read that last word carefully. The statutes of descent and distribution are the intestacy rules — the default scheme that decides who gets what when there is no valid will. “Heir” is a status the Estates Code hands out only when the intestacy rules are doing the work. If there is a will, they are not, and there are no heirs to speak of. This surprises a lot of adult children who assume that being the decedent’s child makes them an heir automatically. It does not. It makes them a child, which is a different thing in the Estates Code.
The second route — “any other having a property right in or claim against an estate being administered” — is the catch-all, and the Texas Supreme Court has given it a working test. Under Ferreira v. Butler, the question is “whether the proponent possesses a pecuniary interest to be benefited and affected by the probate of the will and one which would be materially impaired in the absence of its probate.”
Notice what that test is tied to: the probate of the will. A named beneficiary passes easily, because probating the will is what triggers the right to a distribution. So does a creditor with a valid claim, because estate assets are what will pay the debt. The hard cases are the ones where the claimed interest comes from some other document — a trust, a side agreement, a promise. That is the wall Kevin ran into.
How the Court Analyzed Kevin’s Standing
On the heir argument, the analysis was one sentence long. It was undisputed that David did not die intestate — he left a will, and that will was admitted to probate. So Kevin could not be an heir under Section 22.015 or Section 22.018(1). The court pointed to Moody v. Moody, 613 S.W.3d 707, 716 (Tex. App.—Houston [14th Dist.] 2020, pet. denied), where a decedent who died testate left no “heir” within the meaning of the Estates Code definition.
On the pecuniary interest argument, the court went to the will and read it. David’s will bequeathed nothing to Kevin. Quoting an older Texas treatise on estate administration, the court noted that “[t]he intention of the testator must be determined from the words used in the will, and from those words alone.”
Then came the point that made the executor fight pointless. Under Ferreira, an executor “stands in the shoes of the decedent,” meaning an independent executor has “no greater powers, rights, or privileges than the decedent whose estate he or she represents.” So swapping Vicki out for someone else would not move Kevin an inch. Looking at the words of David’s will, the court held, no matter who the independent executor is, Kevin has no pecuniary interest in the estate. Replacing the executor cannot create a gift the will never made.
That left the trust. Kevin’s fallback was that his interest came through the trust, not the will. The problem — which Kevin conceded — is that the First Amendment deprived him of any interest in the trust. He acknowledged on appeal that to give him standing to pursue his claims, he would need a reinstatement of the potential gifts the First Amendment revoked.
And that is where the whole appeal collapsed. Kevin never filed a pleading challenging the validity of the First Amendment. He argued it at the hearing, but the probate court made clear it was deciding one narrow question: “Do you qualify as an interested person of the [E]state?” The probate court never ruled on the amendment’s validity. Nothing in the record showed the First Amendment had ever been declared invalid by any court, or challenged at all. So there was no judgment and no findings for the appellate court to review, and Texas appellate courts will not consider issues raised for the first time on appeal. Kevin’s standing depended on invalidating the amendment, and the amendment was not before the court.
The court declined to form any conclusions about whether the First Amendment was valid. But it did add an observation in a footnote that is worth reading twice. Even if it had reached the question, it said, as a surviving Co-Grantor of the trust Vicki had absolute authority to amend it, and David’s will expressly incorporated any future amendment of the trust into the will. Effectively, David gave Vicki the authority to disinherit Kevin by incorporating the trust into his will, regardless of how it would — or could — be amended.
That footnote reframes the entire dispute. Kevin was not the victim of a rogue amendment. He was on the receiving end of an estate plan that was built to let the surviving spouse do exactly what she did. The court also noted that even if Vicki had not been appointed executor, it would change nothing about her rights or restrictions under the trust. The relief Kevin actually wanted had nothing to do with who served as executor.
Holding that Kevin was not an interested person and lacked standing to oppose Vicki’s appointment, the court overruled his dispositive issues and affirmed.
The Takeaway
Pour-over wills and revocable trusts are a common pairing in Texas, especially in second marriages. The will is close to a formality; the trust is where the property actually goes and who actually gets it. That structure has real advantages, and one consequence people do not see coming: a beneficiary’s interest can be added or erased by a trust amendment without anyone touching the will or setting foot in probate court.
Which means the probate case is the wrong fight. Kevin’s grievance was with the First Amendment, and the way to attack it was a direct challenge to that amendment — pleaded as a trust claim, with a ruling he could appeal. Instead he used it as ammunition in an executor-disqualification fight, and the standing rules shut the door before the argument was ever heard. If your claim lives in the trust, challenge the trust. Arguing about who holds the letters testamentary does not get you a share of an estate the will never gave you.
Two practical points come out of this. First, plead it or lose it. Raising an issue for the first time at a hearing, or for the first time on appeal, gives the appellate court nothing to review — and the court here said so plainly. Second, if you are signing a pour-over will that incorporates future amendments to a trust your spouse can amend alone, understand what you are signing. That language can hand your surviving spouse the power to disinherit your children from a prior marriage, and it will hold up.
Our Fort Worth Probate Attorneys provide a full range of probate services to our clients, including helping with standing disputes and objections to the appointment of an executor. Probate is what we do. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process.We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE consultation.
Disclaimer: The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
