What comes next? A guide to Texas probate.
Updated: Oct 14, 2020
The process of probate can be intimidating, but it does not have to be. In your time of grief, a a knowledgeable and compassionate probate attorney to walk you through the process can make all the difference.
You may have previously heard the terms Executor and Administrator and are confused about what the difference is or what your role is. The difference between an Executor and an Administrator is dependent upon the way a person is appointed to represent the Estate. If you are appointed under the decedent's last will and testament, you are the Estate Executor or Executrix. Conversely, if there is no last will and testament, you are the Estate Administrator or Administratrix.
You may also be wondering what is the difference between a Dependent and Independent Estate. In a Dependent Estate Administration, the Executor or Administrator must seek court approval for almost every action that is taken, and report regularly to the Probate Court. In a Independent Estate Administration, the Executor or Administrator is given more authority to act without the Probate Court's oversight and approval.
Upon being named Independent Executor, your first task is to take possession of all personal property and business records of the Estate as soon as possible. This may include changing the locks to real property, obtaining insurance for any real property, caring for personal property to ensure the value does not diminish, arranging storage for any non-perishable personal property, selling any personal property that is perishable, forwarding mail from the decedent’s estate, transferring accounts into the Estate name, preserving cash assets, setting up appropriate bank accounts for Estate funds, and canceling credit cards. You will also be required to obtain an employee identification number for the Estate.
Next, you must publish a notice to unsecured creditors in the newspaper within 30 days following appointment as Executor. Once the notice has been published, the newspaper will send a copy of the notice that was published and will execute a Publisher’s Affidavit verifying that the notice was properly published pursuant to Texas law. This Affidavit must be filed with the Court. Creditors have 4 months after the date of publication to make a claim against the Estate.
Within 60 days following the appointment as Executor, you must give notice by certified mail to all secured creditors and general claimants, that you have actual knowledge of, that are owed a debt by the Estate or that have a claim against the Estate. Within 60 days following appointment as Executor, you must also give notice to, or obtain waivers from, all beneficiaries the Estate and file an affidavit with the Court attesting that notice has been given to all beneficiaries. Generally, I prefer to have waivers completed prior to appointment as Executor.
Before the expiration of 90 days following appointment as Executor, you must prepare an Inventory, Appraisement, and List of Claims (“Inventory”) detailing the assets of the Estate, claims due or owing to the Estate, and the value of each Estate asset as of the Decedent’s date of death. This inventory needs to be filed with the Court no later than 90 days from the date the judge signed the Order Admitting the Will to Probate, or if the inventory has been delivered to all Estate beneficiaries, an affidavit stating that fact in lieu of filing the inventory in the public records. If necessary, a request for an extension of the time for the Executor to file the Inventory may be submitted to the Court.
Throughout this time, and until the Estate is distributed, the Executor must manage the property, and is charged with protecting, preserving, and maximizing the Estate. This includes maintaining written records of expenditures of Estate funds, obtaining property insurance, handling creditor’s claims, collecting claims due to the decedent, and properly disposing of property. This also consists of reviewing claims submitted by creditors and determining whether to allow or deny the claim. Every claim received must be filed with the Court. If the claim is not approved within 30 days of receipt, it will be denied by operation of law.
Once all property has been acquired and sold, if applicable, and all creditor’s claims handled, the Executor is generally ready to proceed with distributing the Estate. At this time, an Application and Order for Payment of Expenses of Administration is filed with the Court. Upon receipt of the Order, the Executor may, generally, proceed with distributing the Estate property.
You may be required to file a federal income tax return or federal estate tax return depending on the specific facts of your case. Often, you will need to file an income tax return for both the Decedent and the Estate. All necessary tax returns must be filed prior to closing the Estate. You are also responsible for paying, out of Estate funds, all real property and ad valorem taxes due on Estate property.
While the process undoubtedly seems overwhelming, a good probate attorney can walk you through each step and help ensure you are meeting your fiduciary duty to the Estate.