- Probate is a court proceeding by which a will is proved valid or invalid. The term is used to mean all proceedings pertaining to the administration of estates such as the process by which assets are gathered; applied to pay debts, taxes and expenses of administration; and distributed to those designated as beneficiaries in the will.
- The probate courts of Texas are statutory probate courts presided over by judges elected on a countywide basis.
- In general, the probate court probates the wills of deceased persons; establishes guardianships for incapacitated persons and minors; supervises the administration of the estates of deceased persons and incapacitated persons and minors; hears matters involving inter vivos, testamentary and charitable trusts; and hears all cases involving civil mental health commitments.
For simple and straightforward estates, the court should have a resolution within 9 months. However, if the original will cannot be located or the will is contested, the process can take up to a 2 years or more.
When someone passes away in Texas, the executor (sometimes called an administrator) has four essential functions. They are as follows:
- Presenting the will (if one exists).
- Identify and collect estate assets.
- Pay any debts owed by the deceased at the time of their death.
- Distribute the remaining money and property according to the terms of the will or the Texas law of intestate succession (if there was no will).
Presenting the Will
The first step is presenting the will to the probate court to ensure that all property is transferred as specified. After the judge issues an order authorizing the named executor to act, that executor has the authority to transfer assets, access financial accounts, communicate with third parties, and carry out their other responsibilities.
Identifying and Collecting Estate Assets
The executor must take an inventory of estate assets in order to accurately transfer property and pay any financial obligations. They make a list of personal property, assets with titles (such as vehicles and real estate), and financial holdings, such as investments and bank accounts. In addition:
- If the estate includes property in another state, the executor will start another probate process in that state for its disposition.
- If the deceased owned a business that requires management, the executor may seek assistance from the probate court to establish a trust.
Paying Estate Debts and Taxes
The executor will notify all creditors about the person’s death and validate any claims before paying them to ensure that they are legitimate debts. Other duties include:
- Filing tax returns for the decedent and the estate and paying any taxes due
- Notifying the Social Security Administration regarding benefits payments
- Canceling credit cards
Any assets that remain after all financial obligations are satisfied are then distributed.
At this stage, the executor’s primary responsibility is ensuring that all named beneficiaries receive the property left to them in the will. This means that they must:
- Locate these beneficiaries
- Distribute the assets in accordance with the terms of the will
If an asset is not named in the will, the executor will distribute it according to Texas law. Once all distributions are complete, they return to the probate court and ask it to close the estate and discharge them as the executor.
Estate executors have certain fiduciary responsibilities to the heirs and beneficiaries. They are:
- The duty of loyalty: Every action taken by the executor must be for the benefit of the estate heirs and beneficiaries. They can never disclose information about the estate to unauthorized parties, favor their personal interests over those of the beneficiaries, or realize a profit in business dealings with the estate.
- The duty of prudence: An executor must exercise diligence, care, and prudence in dealing with the assets of the estate.
- The duty to preserve assets: An executor must provide sufficient security and protection for estate assets. This includes but is not limited to obtaining sufficient insurance coverage and maintaining a separate bank account for estate money.
These responsibilities remain the name regardless of whether the probate administration is dependent or independent.
Executors of an estate have certain obligations to beneficiaries of an estate. When an executor does not fulfill his or her obligations, beneficiaries have certain rights to force an executor to comply. This usually means getting the court involved. Executors can significantly reduce their risk by respecting a beneficiaries’ reasonable expectations and rights.
A beneficiary should expect the executor to do the following:
Provide the beneficiary with information
It is a fundamental right of a beneficiary to ensure that an estate is administered properly according to the terms of the Will. To do so, beneficiaries must be provided with enough information to enforce their rights. This generally includes the right to receive a copy of the Will shortly following the death of the deceased, and the right of being informed about the assets of the estate within a reasonable period of time. If a Will has been probated in Manitoba, any person can get a copy of the Will and the estate inventory from the court. However, in order to minimize disputes, the executor should consider sending a copy of these documents directly to the beneficiaries to ensure that they are properly informed.
Distribute their entitlement in a timely way
The length of time it takes to administer an estate will depend on its nature and complexity. It is quite normal for an estate to take a year to be administered. However, a wise executor may want to keep the beneficiaries informed of any expected delays.
Treat beneficiaries fairly
Beneficiaries have a right to be treated the same way as all other similar beneficiaries. The executor should not give preferential treatment to some beneficiaries and not to others, unless the Will directs them to do so. Even if the Will gives them discretion in dealing with certain assets as they see fit, an executor should keep beneficiaries informed to minimize possible disagreements, even if the final decision is up to him or her. An unhappy beneficiary has no recourse as long as the executor is respecting the obligations set out in the Will.
Provide an accounting
Beneficiaries are entitled to an accounting–a detailed report of all income, expenses, and distributions from the estate–within a reasonable amount of time. Beneficiaries are also entitled to review and approve any compensation requested by the executor. Usually beneficiaries will be asked to agree to the executor’s accounting before receiving their final share of the estate. If beneficiaries do not agree with the accounting, they can force the executor to pass the accounts to the court. This means that the executor will need to show the court everything that has gone in and out of the estate while he or she was executor. At this point, the court can also be asked to confirm the executor’s compensation.
If the executor is not doing the above then they can be removed and another person appointed.
Request the removal of the executor:
If a beneficiary believes that the executor is not acting in the best interest of the estate, the beneficiary can ask the court to have that person removed as executor. However, a court will only remove an executor if it determines that their removal is justified. That usually means that the executor will remain executor unless he or she has been in serious breach of his or her obligations. It will not remove an executor simply because the beneficiaries disagree with some of his or her decisions. An application to remove the executor is not without risks. The court may find that the legal costs relating to the application be paid by the estate, the beneficiary personally, or by the executor depending on the circumstance.
To avoid disagreements an experienced or well-advised executor will not wait until beneficiaries start asking questions; they will let them know at regular intervals how the administration of the estate is progressing. Furthermore, if a beneficiary is not receiving the information they expect from an executor, they should request it.
If you are a beneficiary of an estate and have any questions during the course of its administration and you cannot get a satisfactory explanation from the executor, you would be wise to consult an attorney in order to enforce your rights.
Looking for more information on this subject, contact The Bowen Law Firm, PLLC, today!
The Probate Process in Texas
During probate, the court will legally recognize a person’s death, oversee the payment of their debts, and rule on the distribution of his or her estate and assets. If your loved one had a drafted will, the named executor of that will must file for probate — typically within four years of the decedent’s death.
The Application for Probate of Will and for Issuance of Letters Testamentary should be filed to the court with an original copy of the deceased’s will. From here, the court will have to notify each beneficiary and party named in the will that the process has begun.
The executor of the will must send certified letters to each person named in the will, with a copy attached, as well as the order from the court admitting the will to probate. The executor must typically do this within 60 days from the date of the order — and within 90 days, the executor must prepare a sworn affidavit with the court swearing that the beneficiaries were notified.
Dependent vs. Independent Administration
In Texas, the default is a dependent administration, which means that the executor relies on the authority and supervision of the court to take actions in the probate process, such as sell assets and pay debts. In addition, they must file accountings with the court every year that the probate case continues. This higher level of scrutiny can involve a lot of time and expense, but it helps estate heirs and beneficiaries feel confident that the administrator has properly completed their duties.
Heirs or beneficiaries of an estate can opt to have the court waive the dependent administration requirement and appoint an independent administration, which is less expensive and time-consuming. In this situation, the estate executor distributes assets, pays bills, and carries out their duties without court oversight.
Administration of an estate can be difficult, especially if there are assets located outside Texas or the deceased had significant business holdings. If you are named as the executor of a complicated estate, an experienced Texas probate attorney can answer challenging questions and help you make the right decisions.
At The Bowen Law Firm, PLLC, we are committed to helping you administer estates effectively and efficiently. This includes advice and support with accountings, asset distribution, and debt payments. For more information on how we can support you as executor of a loved one’s estate, contact The Bowen Law Firm, PLLC today.
- What is estate planning?
- Why do I need to plan?
- What is my “estate”?
- Do I need a will?
- What happens when someone dies without a will?
- Should I hire a lawyer to help me draft a will, or can I do it myself?
- What do I do after the death of a family member?
- What is a living will/advance healthcare directive?
- What are trusts and what benefits do they offer?
- What plans can I make for my pets?
- Will my beneficiaries’ inheritance be taxed?
- What is a power of attorney?
- Can I leave money to a charity?
- What happens if the terms of a trust are disputed?
- What is a guardianship?
- What is a will?
- Who needs a will?
- What happens if I die without a will?
- Who should draft my will?
- What are the requirements for making a will?
- Can I appoint a guardian for my children in my will?
- Can I dispose of my property in any way I wish?
- What is a Revocable Living Trust?
- Do you need a lawyer to execute a trust?
- Is there a time limit on a living trust?
- What questions to ask when setting up a trust?
- What do you do with a living trust after death?
- What are the benefits of a Revocable Living Trust over a Last Will (probate court)?
- What are the drawbacks of a Revocable Living Trust?
Power of Attorney
- Who Should Be Your Agent?
- How The Agent Should Sign?
- What if I move?
- Will my Power of Attorney expire?