Texas Probate, Estate and Trust Administration
How does probate work?
The fundamental duties of an Executor (or personal representative) of an estate are the same as those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can.
Read on for some essential reminders about the Texas probate process and how representatives can assist with the process.
What should I know about the Texas probate process?
In order to probate an estate, the individual who has been appointed as Executor must first appear before the court and file the will. Once approved, and issued Letters Testamentary, an Executor is required to prepare and file an inventory of the estate and a list of claims against the estate. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. [Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is filed late, the representative could be fined or even removed, which would slow down the process (and raise tempers).
Texas allows for “Independent Administration” by the Executor if the right wording is used in the Will. This allows the Executor to provide necessary actions without seeking court approval for every step. The Executor must keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail. Also, some people are under the mistaken impression that all debts must be paid. They may begin paying the decedent’s bills immediately, which is not necessarily good. Some states provide “permissive notice” to unsecured creditors and this may avoid paying some unsecured claims.
The Executor must keep the beneficiaries in the loop, including providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the Independent Executor.
The Executor is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The Executor is able to sell any property that is perishable or would deteriorate in value during the Texas probate process.
One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The Executor must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the Executor is doing his or her job and making sure everything stays where it is until probate is closed.
As you can see, being an Executor is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role of Executor. The Executor can also be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.
We are here to help.
The Executor can not probate a will without legal representation. But not all attorneys have experience in this area. As a result, it is essential that the Executor work in concert with an attorney who is board certified in Probate & Estate Planning by the Texas Board of Legal Specialization like Attorney John McNair. With over 35 years of experience, John can help you navigate and streamline this difficult process.