In Serna v. Banks, the central legal issue addressed was whether an heir has standing to bring tort claims (such as breach of fiduciary duty, conversion, fraud, and negligence) for property belonging to a decedent’s estate while the estate’s administration is ongoing. No. 13-23-00464-CV, 2025 Tex. App. LEXIS 2946 (Tex. App.—Corpus Christi May 1, 2025, no pet.). The court reaffirmed the general rule that heirs cannot sue in their own right for estate property; only the executor or administrator may do so unless it is alleged and proven that the estate administration is closed or unnecessary. The court stated:

Generally, the survival statute allows for personal injury actions to survive a person’s death and transfer onto “the heirs, legal representatives, and estate of the injured person.” “At common law, a person’s claims for personal injuries did not survive her death” but the statute allows parties to step into the shoes of the decedent and seek adjudication of the injuries inflicted upon them that could have been brought before their death. While the survival statute generally grants an heir the potential to bring a claim, typically, “only the estate’s personal representative has the capacity to bring a survival claim.”

The well-settled general rule is that “heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must sue.” An exception to this general rule arises when an heir alleges and proves that an administration has been closed, or when no administration is necessary. The necessity of administration is a question for the probate court but is generally presumed unless there are facts that show an exception should be made.

We agree that whether appellant labels himself as “beneficiary” or “heir” of the estates is not relevant. It is undisputed that appellant is not the executor of the estates and, therefore, he is attempting to sue in his own right as heir. Appellant argues without authority that he is entitled to bring tort claims as heir of these estates and that the probate proceedings have no effect on his standing to do so. Appellant’s arguments are unavailing.

To proceed on his claims, appellant was required to have alleged and proved that administration of Olivia and Francisco’s estates have been closed or that they are unnecessary. Absent such allegations, there is a presumption that administration of the estates was necessary. The record indicates that appellant neither alleged nor proved that the administration of his parents’ estates was closed or unnecessary.

Id. The court examined whether the claims, though labeled as independent torts, were in substance claims for estate property that existed prior to the decedent’s death. It was determined that the claims were for estate property, not independent torts, and thus subject to probate law requirements. The court also clarified that a constructive trust is a remedy, not a separate cause of action, and must be based on an underlying valid claim such as breach of fiduciary duty or conversion. The appellate court affirmed the trial court’s dismissal of the claims for lack of standing, as the appellant failed to allege or prove that the estate administrations were closed or unnecessary, and evidence showed the administrations were ongoing.