The Probate Process:
Texas
Independent Representation
January 1, 2010
If a Texas Will provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized. Under the rules of the Dallas County Probate Courts, an individual desiring to probate a will must be represented by an attorney; and the attorney must appear in court on behalf of the executor of the will whenever a court appearance is required.
Assuming no Will contest or other significant delay or complexity, the following 10-step procedure applies to a valid Texas Will appointing an Independent Executor, to serve without bond. (In the event the Will does not so provide, different rules apply.) Your attorney will guide you through the process and can perform as many or as few of the tasks for you as you prefer.
- Meeting. As soon as you
are able, you should schedule an appointment to meet with a probate
attorney. To that meeting, you should take the
following documents if possible:
- The original of the Will
- An original death certificate
- Your photo ID (because your signature will need to be notarized)
- Contact information for everyone named in the Will
- Financial documents of the deceased person to which you have access, including current statements and bills
- Initial Filings with Court. After meeting with you, your attorney will file the original will and an application for probate with the probate court. If it is necessary to obtain immediate access to a safe deposit box (for example, if the original Will is inside), your attorney can obtain an emergency order from the court to do so.
- Waiting Period. A 10-day waiting period ensues while the court serves notice on the public that the will has been filed.
- Hearing. After the 10-day waiting period, the court
will set a hearing
on the application for probate.
- You must attend the hearing in person. If you are not available, someone close to the decedent whom you designate must attend.
- If the will is being probated in Dallas County, the hearing is held on the 2nd Floor of the Records Building, on the corner of Main Street and Houston, in downtown Dallas.
- You (or your designee) must testify as to the date of death and other facts. Your attorney will go over the testimony with you in advance of the hearing, and will answer any questions that you have about the hearing or any other aspect of probate.
- If the judge finds the testimony and application to be correct and lawful, he or she will enter an order admitting the Will to probate and appointing you as Executor.
- You will then sign the Executor’s Oath, which will be notarized and filed with the court clerk.
- Issuance of Letters Testamentary. After the hearing and the filing of the Oath, the court clerk will issue “Letters Testamentary” to you. The Letters Testamentary are certified documents that give you full authority to do everything that must be done to administer the Estate –- e.g., transfer title to property, access bank and brokerage accounts, sell assets, pay bills, distribute cash and other assets to the beneficiaries, etc. Once Letters Testamentary in an Independent Representation are obtained, no permission from or involvement by the court is necessary to sell any of the assets, or to distribute the bequests. You have a sworn fiduciary duty to administer the Estate in a lawful and appropriate fashion.
- Gathering Assets. You
should immediately begin the process of identifying and taking
control of all of the property the deceased person owned. Your
attorney can help you with this process to whatever extent you
prefer.
- Collect the deceased person's mail; and have future mail forwarded to you.
- Contact the deceased person's bank and obtain authority to access checking and savings accounts.
- Obtain a federal EIN number and open a checking account for the Estate; transfer the deceased person's cash into it as appropriate; and use it to deposit all payments due to the deceased person. (If no payments are expected and few bills exist to be paid, ask your attorney whether this step is necessary.)
- Contact the insurance companies with which the decedent held life insurance policies or any other policies that carried a death benefit.
- Contact the institutions at which the decedent held retirement accounts or annuities, and follow the institutions' procedure for appropriate distribution of those accounts.
- Contact the holders of any mortgage or other loans, and transfer the account into the Estate's name.
- Take control of the deceased person's residence, and make sure the mortgage, utilities, insurance, taxes, and other bills are paid until the property can be sold or transferred to a beneficiary.
- Take control of and secure other personal property, such as cars and recreational vehicles.
- If the deceased person owned a business, take steps to cooperate in the continuation of the business; or take steps to sell it or otherwise to wind it up.
- If the decedent was employed, take steps to obtain a final paycheck.
- Inventory, Appraisement and Claims. You must make a written Inventory of everything the deceased person owned on the date of his or her death. Your attorney can advise you on the degree of specificity required, or can perform this task entirely if you like.
- The Inventory must include any claim for money that the Estate has against another person or entity –- e.g., a wrongful death lawsuit, money owed to the decedent, an automobile insurance claim, accounts receivable of the decedent’s business, etc.
- The Inventory must include a valuation or estimate of the fair market value of each asset. Your attorney can help you to identify appropriate valuation methods, or can perform this task for you.
- The Inventory must be completed within 90 days of the date the Executor was qualified by the court to receive Letters Testamentary and begin his or her duties. Once the Inventory is completed, your attorney will file it with the court.
- Notices. You must meet
the statutory deadlines to send certain notices, which your attorney
should take care of for you:
- Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
- Mandatory 128A notice by certified mail, and a copy of the will, to each of the named beneficiaries.
- Mandatory notice by certified mail to each secured creditor, such as mortgage holders.
- Optional notice to known unsecured creditors.
- Administration. After the Inventory has been completed and you have control over all of the deceased person's property and claims, you must administer the Estate. First, you must make arrangements to take care of the final bills, tax returns, and unsecured debts of the deceased person, and then you must carry out the terms of the will. If the Estate has any claims against third parties, you must institute appropriate measures to collect on those claims. You may need to sell certain assets (if the Will allows you to do so), but in any event, you must transfer and distribute all of the bequests to the named beneficiaries. Your attorney can assist you in that process, including preparing deeds or other documents or transfers as required.
- Completion. Once all of the property has been transferred according to the Will's terms, your task is complete. Nothing further needs to be filed with the court.