Texas Probate: A Guide to the Lone Star Estate
We all know losing a loved one is difficult. Wrapping up the deceased’s affairs and ensuring their wishes are honored shouldn’t be. The following is a brief summary of the steps necessary to wrap up an estate. Please contact my office at 979-821-2110 for all of your estate planning and probate needs.
- The Burial
The decedent’s burial is often one of the first issues that a spouse or close family member must coordinate. A review of the decedent’s will should be made to determine whether the decedent’s intent was expressed relating to burial instructions. An inquiry should also be made to determine whether the decedent appointed an agent to control disposition of remains or providing for funeral instructions The Texas Estates Code provides means to file an emergency application to obtain funds from the decedent’s assets to pay for expenses related to the funeral. Otherwise, family members can opt to pay for the funeral, and be reimbursed by the estate.
- Locating the Will
As soon as practicable after the death of a testator, a diligent search should be made for the will. I encourage my clients to keep a copy somewhere easy to locate (like a desk drawer reserved for important documents) and to keep the original in a safe place (like a safety deposit box). Also, the attorney that drafted the will often keeps a copy so check there if you can’t locate one at home.
- Opening the Safety Deposit Box
Wills and legal documents are often kept in safe deposit boxes. The Estates code provides procedures for opening such boxes to assist in locating the will, burial instructions, insurance policies, and other important documents of the decedent.
Without a court order, a financial institution may allow the following individuals to examine the box or documents following the death of the owner of the box: the decedents surviving spouse, decedents parents, an adult descendant of the box, or a person named as executor in a copy of a will that appears to be valid.
If the institution requires a court order, an application can be filed with a court having probate jurisdiction.
- Obtaining Death Certificates
At the time funeral arrangements are being made, it is a good idea to order a number of certified copies of the death certificate from the funeral home. Most people start with five or ten. These certificates may also be obtained from the county department of vital statistics. The executor may need an original death certificate to transfer stock certificates, obtain insurance proceeds and death benefits, gain access to safe deposit boxes, complete tax returns, and for many other reasons.
- Determination of Whether Probate is Necessary
There are many alternatives to probate in Texas. Affidavits of Heirship, Small Estate Affidavits, Proceedings to Declare Heirships, Orders of No Administration, and Informal Family Agreements are all options under the right circumstances. You should consult an attorney to determine whether probate alternatives are a good match for the deceased’s estate.
- Application for Probate of Will and Issuance of Letters Testamentary
To begin the official “probate of the will” you should file an Application of Probate with the proper court (typically in the county where the decedent lived). An executor named in a will or any person “interested in the estate” may make an Application for Probate. The application must be filed within four years after the decedent’s death. After the application is filed, a citation is issued and notice must be provided before a hearing on the application may be held.
During a hearing to probate the will, the applicant must prove to the court’s satisfaction (by live/sworn testimony) all of the necessary facts under the Texas Estates Code. Your lawyer will guide you through this list of questions they will have prepared beforehand to “prove up” your application for probate at the hearing.
- Order Admitting Will to Probate and Authorizing Letters Testamentary
After the hearing, the Judge will sign an order admitting the will to probate and authorize issuance of Letters Testamentary. The Letters Testamentary show the date of which the executor or administrator qualified and certify the authority of the executor or administrator to deal with the assets of the estate. The Letters are extremely important in the administration of the estate, and a sufficient number of copies should be ordered. Frequently, transfer agents and other financial institutions require recent letters testamentary in order to conduct the business of the estate. The Letters are only valid for sixty days each time the clerk issues them. Updated copies can be obtained through the County Clerk. Copies are typically $2.00 each and must be on hand for most transactions on behalf of the estate.
- Dependent Administration
It is worth noting that there are two forms of administration in Texas. Dependent administration occurs when an independent administrator is not appointed in the will. A dependent administration is an extremely restrictive method for administering the decedent’s estate. The estate representative is at all times subject to direct control and supervision by the court. Approval must be obtained before any sales of property, payment of debts, execution of contracts, settlement of lawsuits, expenditures of funds, distribution of assets, or any other acts which obligate the estate. A dependent representative of the estate is personally liable for any acts performed without the required court authority.
- Independent Administration by Will
A decedent can appoint, by will, an Independent Executor. This Executor shall act free of court control. With independent administration, there is no court participation in the administration of the estate other than the probate of the will, the initial appointment of the independent executor, the independent executor’s oath, notice to beneficiaries, notice to creditors, and the approval of an inventory appraisement and list of claims filed by the independent executor. Independent administrators can sell real estate, pay debts and beneficiaries, and conduct virtually all other probate matters free of the court’s intervention. Independent Administration is a much cheaper and less restrictive probate option.
- Overview of Duties & Liabilities
Administrators and representatives each have duties to the estate. If these duties are violated, the administrator or representative can be held liable However, the duties of an administrator or representative shouldn’t be unduly intimidating. Duties include taking reasonable care of all estate property, filing necessary tax returns, publishing required notice to creditors, and distributing the assets of the estate. A personal representative must also give notice to all beneficiaries within sixty days after a will has been admitted to probate and provide an inventory of assets or affidavit in lieu of inventory when appropriate.
Generally, the estate property should be sold when necessary to pay expenses of administration, funeral expenses, expenses of last illness, allowances, and claims or when it is in the best interest of the estate. An independent personal representative may sell real property or borrow funds without court authority provided these actions are allowed under the will. Dependent representatives generally require court approval to sell property. Letters Testamentary are typically required by all institutions involved in the sale of property so make sure you have current copies on hand.
- Executor’s Compensation
An executor or administrator is entitled to compensation for serving as the estate’s representative unless the will prohibits it.
- Closing the Estate
The closing of an estate can occur by affirmative act or based on the facts and circumstances. Even without invoking a formal closing method, an independent administration is considered closed when the debtors have been paid, the property has been distributed, and there is no more need for administration.
A dependent administration may be closed when all debts have been paid and no further necessity exists for the administration to continue. The Estates Code provides that a representative must close the administration within three years following the grant of the Letters unless good cause can be shown why it should continue.
The above is only a brief introduction to the Texas Probate process. Please contact my office with any questions!
Phone: (979) 821-2110