The Executor of a Will has the responsibility of submitting the Will for probate. Under the rules of the 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. The first steps an Executor should take are (1) finding the Will and putting it in a secure place; and (2) contacting a probate attorney.
If a Texas Will properly provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized — and the procedure is quick and easy. If the Will is in order, and no will contest is filed, the Will can be probated in as little as two or three weeks, at a fixed fee.
Assuming that there is no will contest or other significant delay or complexity, the usual procedure for probate and administration of a valid Texas will naming an independent executor is as follows:
- As your attorneys, we file the original will and an application for probate with the probate court.
- A 10-day waiting period ensues while the court publishes notice that the will has been filed.
- After the 10-day waiting period, a hearing is held on the application for probate.
- The Executor of the will (or someone close to the decedent whom the Executor designates) must accompany us to the hearing.
- 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.
- The Executor must testify as to the date of death and other facts. We will go over the testimony with the Executor in advance of the hearing, and we will answer any questions that the Executor has about the hearing or any other aspect of probate.
- To serve as Executor, a person must not be
- a legally incapacitated person;
- a convicted felon;
- a non-resident of Texas, unless the person appoints a resident agent in this State; or
- a person whom the court finds unsuitable.
- The Executor must sign the Executor’s Oath, which will be notarized and filed with the court clerk.
- After the hearing and the filing of the Oath, the court clerk will issue “Letters Testamentary.” The Letters Testamentary are certified documents that serve as authority for the Executor to do everything that must be done – e.g., transfer title to property, access bank and brokerage accounts, sell assets, distribute cash and other assets to the beneficiaries, etc. — to administer the estate.
- We will send the following notices; and we will then file with the court clerk proof that the notices were sent:
- Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
- Mandatory 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.
- The Executor must arrange for a final tax return to be filed for the decedent, and possibly for a tax return to be filed on behalf of the estate. We can recommend a CPA for those tasks, if you do not already have one who is experienced in filing estate returns, or we can do the returns ourselves, as you prefer.
- The Executor must contact all insurance companies with which the decedent held life insurance policies, and all institutions at which the decedent held retirement accounts, to ascertain whether the proceeds are probate assets or non-probate assets. We will do these tasks for you if you prefer; and we can advise how to distribute the proceeds from these assets.
- The Executor is responsible for making a written Inventory of the estate. We can assist in this process to whatever degree the Executor prefers.
- In the event the deceased person owed money to creditors, and the creditors file a valid claim with the Executor, the Executor must pay those valid claims out of the estate’s funds.
- After the Inventory is completed and filed (or an affidavit of completion and delivery is filed instead), and valid creditors are paid, the Executor must proceed to carry out the terms of the will. The Executor may need to sell certain assets, but in any event, the Executor must transfer and distribute all of the bequests to the named beneficiaries. We can assist you in that process at an hourly charge, including drafting any deed transfers or other documents that are necessary. Once Letters Testamentary are obtained in an Independent Representation, no permission from or involvement by the court is necessary to sell any of the assets, or to distribute the bequests. However, the Executor should keep good records of every transaction; and in some estates, it is a good idea to obtain receipts and releases from each beneficiary as his or her distribution is completed.
- Once the terms of the will are satisfied, the process is complete. Nothing further needs to be filed with the court.