Tag Archive for: Texas

In the Estate of Dempsey Johnson, Deceased: The Acceptance of Benefits Doctrine | Matthew Griffeth | Probate Litigation | Farrow-Gillespie Heath Witter LLP

In the Estate of Dempsey Johnson, Deceased: The Acceptance-of-Benefits Doctrine

/in /by

In February of 2021, the Texas Supreme Court heard arguments concerning whether a beneficiary of a will has standing to contest the will despite having already accepted benefits under it.  In the case, the contestant argued that the “acceptance-of-benefits” doctrine did not bar her claim because she had not accepted all her benefits (under the will or via intestacy), and she therefore retained her standing to challenge the will.  In making this argument, the contestant relied on the previous case of Holcomb v. Holcomb, which provided that a contestant may challenge a will if the benefits she accepted are worth less than those to which she is entitled under the challenged will or intestate laws.[1]  The Court in Johnson, however, overturned Holcomb and expressly denied contestants the right to take partial benefits under a will while simultaneously bringing a challenge to its validity.  The Johnson holding attempted to emphasize that the doctrine enforces the terms of the will and its bequests, not just the value conferred on each beneficiary.

To contest any will, a contestant must have standing as an interested party that is not barred by an affirmative defense.  One such affirmative defense is the acceptance-of-benefits doctrine.  If the will proponent can show that the contestant accepted benefits, the contestant bears the burden of rebutting that claim.  As the Johnson court explained, “[e]quity does not permit the beneficiary of a will to grasp benefits under the will with one hand while attempting to nullify it with the other.”  Thus, a beneficiary is estopped from bringing suit to challenge a will if and when they voluntarily accept any benefit under the will, unless the contest is consistent with the claim that the will is invalid.  It should be noted, then, that if a beneficiary is entitled to some benefit outside the will, accepting such a benefit does not, according to Johnson, preclude that beneficiary from bringing a contest.  In other words, if a beneficiary accepts some asset to which they would otherwise be entitled under intestacy, for example, their actions should not be inconsistent with contesting the will, so the contest should be allowed.  The Johnson court goes even further and says that accepting something that one would not have legal entitlement to without the bequest cannot be consistent with contesting a will and is thus barred by the acceptance-of-benefits doctrine.[2]  Additionally, the acceptance-of-benefits doctrine requires voluntary acceptance of a benefit.  In this way, the beneficiaries are effectively given a choice: they can accept a bequest, implicitly accepting the will’s validity, or they can reject the bequest and bring a contest.  There is no option for both.  The Johnson court, however, did not elaborate on when an acceptance of benefits is voluntary.

In Johnson one of the decedent’s daughters, Tia MacNerland, was bequeathed a mutual fund account under the will.  Importantly, MacNerland would not have been entitled to that account but for the will.  However, the total amount to which MacNerland was entitled under the will was substantially less than what she would have been entitled to if the decedent had died intestate.  After voluntarily receiving the mutual fund account, MacNerland contested the will’s validity, claiming that her father lacked testamentary capacity.  The executor of the estate (another of the decedent’s daughters) successfully argued that the acceptance-of-benefits doctrine applied because MacNerland had already benefitted from the will by accepting the mutual fund account, and the trial court dismissed MacNerland’s contest for lack of standing.

The appellate court, however, reversed the trial court’s holding.  Citing Holcomb, it held that the contest was consistent with the acceptance of the mutual fund account and could therefore be brought if the benefits accepted were worth less than those to which MacNerland was entitled under the will or intestacy laws (which they were). 

The Texas Supreme Court, however, did not agree with MacNerland and elected to overturn Holcomb.  It held that, because MacNerland accepted the mutual fund account voluntarily, the acceptance-of-benefits doctrine should apply.  This shifted the burden to MacNerland, to show that her acceptance of the mutual fund account—which she admitted was the result of the will and nothing more—was consistent with also invalidating the will.  But since MacNerland had no legal right to the mutual fund account other than through the will, she could not show the requisite consistency needed to maintain the contest.  According to the Court, “a beneficiary must firmly plant herself on the side of the will’s validity or invalidity and accept the consequences of that election.”  The Texas Supreme Court ultimately agreed with the trial court and dismissed the case for lack of standing under the acceptance-of-benefits doctrine.

Ultimately, the Texas Supreme Court decided that a beneficiary cannot take through a will they also seek to invalidate.  Such a result would be inconsistent with the laws surrounding effective wills.  A beneficiary “must adopt the whole contents of the instrument, so far as it concerns [her].”  Thus, as a general rule, the voluntary acceptance of a benefit through a bequest precludes a beneficiary from bringing a will contest under the acceptance-of-benefits doctrine. 

[1] Holcomb v. Holcomb, 803 S.W.2d 411 (Tex. App.—Dallas 1991, writ denied.).

[2] See Trevino v. Turcotte, 564 S.W.2d 682, 686–87 (Tex. 1978).

Matthew Griffeth is a clerk at FGHW. Mr. Griffeth is a 2022 candidate for a Juris Doctor at SMU Dedman School of Law, where he is the Managing Editor for the International Law Review Association’s Year in Review publication.  He holds a B.A. in history from the University of North Texas.

Beware Fill in the Blanks Will | Chris Wilmoth | Probate Law | Farrow-Gillespie Heath Witter LLP

Beware Fill-in-the-Blank Wills!

/in /by

In 2015, the Texas Legislature passed a law requiring the Supreme Court of Texas to make available to the public simple forms for preparing wills. In the six years since, however, the Supreme Court has not published these model wills online. If and when these free model wills are published, it will become easier and more affordable for Texans to prepare a will by simply filling in the blanks.

Of course, fill-in-the-blank form wills are much older than the internet and can be found in form books available at your local bookstore. When blanks in a draft or form will are completed in handwriting, the question sometimes arises whether the handwriting was inserted before or after the will was signed.

In 1837, in the absence of evidence as to when blanks were filled in, the Supreme Court of Missouri presumed that the blanks were filled in before the will was signed.[1] Other state courts have followed this presumption, including South Carolina (1921), Illinois (1929), Wisconsin (1939) and Montana (1960).[2] A legal treatise published in 1954 described this presumption as “well settled.” However, no reported Texas case has adopted or rejected this presumption.

There are many published cases from Texas courts addressing “interlineations” in wills – that is, handwritten (or even typewritten) insertions to the text of a will (as opposed to merely filling in blanks). When such a will is challenged, courts require testimony that the insertions were made before or at the time the will was signed because insertions made after signing are considered void. Even in uncontested cases, probate courts typically admit wills with interlineations “as originally written,” leaving questions about insertions to be resolved by agreement or subsequent litigation.

People making a will should not count on a Texas probate court accepting handwritten insertions, even if they are merely filling in the blanks. This could lead to ineffective provisions in the will or, worse, the complete failure of the document to be admitted to probate, resulting in an intestacy.

Attorneys experienced in the drafting and execution of wills take steps to avoid the issue entirely. With word processing programs, it is easy to make corrections and minimize handwritten insertions during signing ceremonies held at the attorney’s office.

If the will is being signed in someone’s home and blanks need to be filled or corrections need to be made, it is best to initial and date those insertions and refer to them in the self-proving affidavit. Even then, the witnesses might be called upon to testify in court that the handwriting was part of the will when it was signed.

If the Supreme Court someday makes form wills available to the public online, or if you use a form from a book, your will stands a better chance of being admitted to probate at less cost and inconvenience if it contains no handwriting except for the signatures of the testator and the witnesses. The experienced estate planning attorneys at FGHW are prepared to help you minimize these risks.

[1] Graham v. O’Fallon, 4 Mo. 601 (1837).

[2] Guerin v. Hunt, 110 S.E. 71 (S.C. 1921); Martin v. Martin, 165 N.E. 644 (Ill. 1929); In re Home’s Will, 284 N.W. 766 (Wisc. 1939); In re French’s Estate, 351 P.2d 548 (Mont. 1960).

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court No. 2 from 2011 through 2014. He has been named one of the best lawyers in Dallas by D Magazine each year since 2018.

How to Solve the Homestead Conundrum | Probate Law | Farrow-Gillespie Heath Witter LLP

Resolutions to the Probate Homestead Conundrum

/in /by

Under Texas law, a surviving spouse has the right to reside in the marital home until the surviving spouse either abandons the home or dies. But this so-called “probate homestead” right does not extinguish the ownership interests of remaindermen (co-owners, heirs, or beneficiaries) under the decedent’s will.  

The responsibilities of the homestead claimant (the surviving spouse) include paying ad valorem property taxes, costs of maintenance and repair, and interest on any existing encumbrances (e.g., a mortgage), avoiding “waste” and preserving the property, and funding any permanent improvements on the property. The homestead claimant is also entitled to all fruits, rents, and revenues derived from the property. The remaindermen must maintain insurance on the property and pay the principal on any existing encumbrances, such as mortgage principal. Texas law permits the surviving spouse to sell the homestead and use the proceeds to acquire a new homestead with the same rights and obligations as before.

These dynamics can strain a relationship, particularly between a stepparent and stepchildren. To lessen the strain, Texas law does not permit remaindermen to force a partition of a probate homestead. A common resolution to this conundrum is for one party to buy out the other party’s interest in the home, if both sides are willing.

Assuming the surviving spouse is the personal representative of the decedent’s estate, another option is for the surviving spouse to request authority from the court to purchase the home from the estate. Under Texas law, a personal representative of an estate may purchase estate property if the court determines that the sale is in the estate’s best interest.

If the home needs to be sold to satisfy debt associated with the property or the decedent’s estate, the personal representative can offer to purchase the property for an amount that would satisfy the debts or by assuming the debt associated with the property itself. Some factors weighing in favor of the purchase of the property by the personal representative include, but are not limited to, co-ownership of the property by the estate and the surviving spouse, as well as probate homestead rights. Both factors can greatly diminish the marketability of the property to a third-party buyer. The court is likely to find that a purchase of the property by the personal representative is in the estate’s best interest if the proposed purchase is the only viable option for settling the debts of the estate.

The lawyers in our firm have successfully assisted individuals in negotiating a buyout of either the homestead claimant or remainderman’s interests in the property; selling the probate homestead and using the proceeds to acquire a new homestead; and obtaining court authority for the purchase of estate property by a personal representative. Should you find yourself in a probate homestead conundrum, the attorneys at Farrow-Gillespie Heath Witter are here to help you navigate a resolution.

Jessica Dunne is a senior associate attorney at Farrow-Gillespie Heath Witter LLP. Jessica has substantial experience in probate, guardianship, and trust litigation, with a special interest in adoptions. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship.

Spencer Turner is an associate attorney at Farrow-Gillespie Heath Witter LLP. Since obtaining his license to practice law in 2016, Spencer has focused his legal efforts primarily in the trust and estates arena. He has been featured as a speaker on various aspects of the probate process at several seminars hosted by the National Business Institute. Spencer is a graduate from Baylor Law School.

Is It To Late To Probate the Will | Farrow-Gillespie Heath Witter LLP | Probate Law

Is it Too Late to Probate the Will?

/in /by

You’re going through a loved one’s papers and come across a will. The person who wrote the will (a Texas resident) died years ago. What do you do?

First Things First

First, you should surrender the will to the county probate court where the deceased person lived. Texas law requires you to file with the court the original version of the will of anyone whom you are aware is deceased.[1] Surrendering a will to the county makes it available for any beneficiaries who might want to probate the will.

To Probate or Not to Probate

Texas imposes no legal obligation to probate a will. If a will is never offered for probate, the property of the testator, the person who made the will, passes according to the Texas laws of intestacy as if they died without a will. However, you might want to offer the will for probate if it has favorable terms, or to transfer title of any real property that belonged to the testator.   

You don’t have to go to court for title to pass by intestacy. But if you try to sell real property you inherited, the title company might require you to take steps to clear title. That might include asking the probate court to determine the heirs of the person who died and how his or her property passed under Texas law. If you must go to court anyway, you might consider probating the will you found.

Four-Year Deadline

As a rule, courts are not supposed to admit a will into probate more than four years after the testator has died.[2] If it has been more than four years, an exception permits wills to be probated if the applicant offering the will for probate provides an equitable explanation for the delay.[3]

Unfortunately, the reported cases in this area of law do not provide a predictable basis for determining whether the applicant is “in default” for the delay. This is because these cases are so fact specific.

For example, in one case an impoverished widow was permitted to probate her husband’s will, even though he died more than five years before she learned he owned royalty interests.[4]

In another case, a successful attorney with an oil and gas practice, who learned about mineral interests 14 years after his father died, was told he could not probate his father’s will. The applicant was found to be in default because the son “should have known that unexpected events [like discovering mineral interests] often happen in life.”[5]

A recent case from the Supreme Court of Texas provides another example of how courts focus on the particulars of the applicant’s situation.[6] In this case, the independent executor tried to probate the will of a deceased man’s wife because the husband failed to probate his wife’s will during his lifetime. The courts held that the executor could not probate the will on behalf of the husband because the husband had failed to do so within four years of the wife’s death. However, the supreme court also found that, in this particular case, the executor had standing to offer the will in the executor’s personal capacity and was not at fault for the delay.

Even if the person who made the will died more than four years ago, it might be worthwhile to try and probate the will anyway, particularly if the applicant did not personally delay in offering the will for probate.

If you have found a loved one’s will long after their passing, and need help surrendering it to the court or would like to probate the will, seek the counsel of an experienced probate attorney.

[1] Tex. Estates Code § 252.201.

[2] Tex. Estates Code § 256.003(a).

[3] St. Mary’s Orphan Asylum of Tex. v. Masterson, 122 S.W. 587, 592 (Tex. Civ. App. 1909, writ ref’d). The Estates Code provides that the applicant not be “in default” in offering a will for probate more than four year after the death of the person who made the will.

[4] Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).

[5] In the Estate of Rothrock, 3112 S.W.3d 271 (Tex. App.—Tyler 2010, no pet.).

[6] Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019).

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court No. 2 from 2011 through 2014. He has been named one of the best lawyers in Dallas by D Magazine each year since 2018.

Revised Durable Power of Attorney | Probate Law | Farrow-Gillespie Heath Witter LLP

Revised Durable Power of Attorney Act

/in /by

Many sign a Durable Power of Attorney (DPOA) in order to name an agent to handle their finances in case of future illness or incapacity. On November, 1, 2017, the Texas Legislature revised the Texas Durable Power of Attorney Act. The revisions address a frustrating and common problem encountered by Texans attempting to act under a durable power of attorney: third parties (including but especially financial institutions) who reject a valid durable power of attorney with no explanation or request impossible demands. It was not uncommon for a third party to reject a power of attorney and insist that the principal, the maker of a DPOA, execute another “form” provided by the third party. Executing such a form, of course, is not possible when the principal has lost the capacity necessary to execute such a document. The revisions, which apply to all powers of attorney whether executed before or after the revisions, take a “stick and carrot” approach to ensuring third parties recognize durable powers of attorney.

The Carrot

The “carrot” provides that if a durable power of attorney is accepted by a third party “in good faith and without actual knowledge that the durable power of attorney is void, invalid, or terminated, that the agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority, the person may rely on the power of attorney and the agent’s authority as if it were genuine, valid, and still in effect.” Put simply, third parties relying on a durable power of attorney in good faith won’t be held liable if that document later turns out to be invalid.

The Stick

The revised Act provides limited circumstances in which a third party may refuse a power of attorney and a time limitation for doing so. It also allows a third party to request a certification from the agent or an attorney’s opinion on any particular power of attorney. The “stick” authorizes the agent of the DPOA to sue any third party who does not timely accept or reject a power of attorney, or who rejects a power of attorney for an improper reason. The agent also is entitled to recover reasonable and necessary attorneys’ fees.

Additional Revisions

The revisions also change the statutory durable power of attorney form in helpful ways, such as utilizing the term “termination” where it once used “revocation,” which clarified that a principal may terminate an agent’s authority without terminating the authority of other agents appointed under a common power of attorney.

The revisions are a result of an endeavor by Real Estate, Probate, and Trust Law (REPTL) Section of the State Bar of Texas. While the revisions are still fairly new, agents under a durable power of attorney can act with confidence that third parties will accept a valid power of attorney.

If you or someone you know has had problems with persons, third parties, or companies accepting a power of attorney, an experienced probate attorney can assist. These situations can often be resolved without the necessity of a lawsuit.

Probate Law and Litigation | Farrow-Gillespie Heath Witter LLP | Dallas, TX

How to Probate the Copy of a Lost Will

/in /by
Illustration by Chris Elam

You’ve searched everywhere –the desk, file cabinet, footlocker, safe, attic, shed, and safe-deposit box at the bank. But you can’t find the original will.

You call the attorney who prepared it. No luck. No original can be found anywhere.

Or maybe you can’t tell whether the document you have is the original or a copy.

Can you still probate the will?

The good news is: Yes!  You can probate a copy of the will.

How to Probate a Copy of the Will

To probate a copy of the will in the state of Texas, first your application must include the names and addresses of both the beneficiaries and the heirs at law. While the beneficiary is anyone who receives something under the will, the heirs at law are determined by the laws of the state. The heirs might or might not be named in the will. If you are unsure of the testator’s heirs, consult your state’s probate code. After you have completed the application, you can give the application to an attorney to file with the court.

Second, the testator’s heirs need to be personally served with citation. This step usually includes a copy of the will and the filed application. Paying a process server or the sheriff or constable to serve citation can be expensive. You can avoid this expense by getting the heirs to sign a waiver of citation.

If there are heirs who don’t live in Texas or heirs for whom you don’t have an address, you can serve citation by publication.

The best approach is to get all the heirs to sign a waiver of citation. But if there’s any chance the heirs are going to oppose probate of the copy, it might be cheaper to do citation by publication.

After you have completed the necessary requirements, the next step is the hearing.

The Prove-up Hearing

Explanation

At the prove-up hearing, you will need to explain why the original will cannot be produced. Judges are generally lenient on this point if no one is contesting the will.

What the judge wants to know is that you looked for the original, couldn’t find it, and there’s no reason to believe that the testator, the person who wrote and executed the will, destroyed the original with an intention to revoke it.

When I was judge of Dallas County Probate Court #2, I heard everything from “The original was destroyed in a fire” to “It got lost while I was packing everything up to work for the President.”

You will also need to present evidence about the contents of the will. That’s not a problem when you have a true and correct copy of the original will.

The Testimony

Finally, you will need to offer testimony about the execution of the will. Typically, a will is accompanied by a “self-proving affidavit,” an affidavit that proves the testator’s witnesses have sworn under oath that they have signed and witnessed the will. The self-proving affidavit substitutes for live testimony about the manner in which the will was signed.

But wait, can a copy of a will be self-proved?

Self-proving Affidavit

When the original will is missing, the original self-proving affidavit is missing too.

Some courts let you offer evidence that your copy of the self-proving affidavit is a true and correct copy and that no one is questioning its authenticity. In that case, no live testimony concerning the execution of the will is required.

Judges who let you use a copy of a self-proving affidavit rely on Texas Rule of Evidence 1003 and case law applying that rule.[1]

Other probate judges make you bring a witness with personal knowledge of the facts and circumstances surrounding the execution of the will. These witnesses are commonly the subscribing witnesses who were in attendance when the original will was signed or the notary.

If the hearing is successful, the judge signs an Order admitting the copy to probate.

Conclusion

Every state has different rules, every court has different requirements, and every judge has different preferences. When seeking to probate a copy of a lost will, it is best to hire experienced counsel who understand the special rules that apply to copies to avoid surprises at the prove-up hearing.

_________________________________________________________________________________

Probate Law - Chris Wilmoth - Farrow-Gillespie & Heath LLP - Dallas TX

Hon. Chris Wilmoth is a seasoned probate, guardianship, and trust litigator. He also conducts mediations and accepts appointments as a special judge. Mr. Wilmoth served as Judge of Dallas County Probate Court Number 2 from 2011 through 2014. He earned a Bachelor’s degree, master’s degree in English, and Juris Doctorate from Southern Methodist University, where he was a member of the Order of the Coif.

[1] See, e.g. Vince Poscente Int’l, Inc. v. Compass Bank, 460 S.W.3d 211, 216-17 (Texas. App. – Dallas 2015) (refusing to apply a local rule that requires “good cause” for admission of a copy).

Judge Holding Documents | Probate Law

Requirements for Trial by Special Judge

/in /by

Under Chapter 151 of the Texas Civil Practices and Remedies Code, parties to any civil litigation, including probate litigation, may choose to conduct a trial before a “Special Judge” instead of proceeding to trial before the probate court or a jury, and instead of pursuing expensive arbitration.

The requirements for trial by special judge follow:

  • The special judge selected must be a retired or former judge who has served for at least four years as judge of a district court, statutory county court, statutory probate court, or appellate court; has developed substantial experience in her area of specialty; has not been removed from office or resigned while under investigation for discipline or removal; and completes at least five days of continuing legal education annually.
  • The parties must file a written motion with the court announcing the referral, waiving the right to trial by jury, stating the issues to be referred (which can be all or any of the issues in the case) and stating the time and place agreed upon for trial and the name of the special judge.
  • The motion must state that the special judge has agreed to hear the case and the fee the parties have agreed to pay the special judge;
  • All statutes and rules governing procedure and evidence apply to the trial;
  • The trial before the special judge must be reported by a qualified court reporter;
  • Trial should be held at a non-public forum selected by the special judge (usually his or her law office); and,
  • The special judge’s verdict must be submitted within 60 days after conclusion of the trial.

Costs of the trial by special judge, including the fees of the judge and the court reporter, are shared equally by the parties.

Probate Law - Farrow-Gillespie Heath Witter LLP - Dallas, TX

The Texas Probate Process for a Valid Will

/in /by

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:

  1. As your attorneys, we file the original will and an application for probate with the probate court.
  2. A 10-day waiting period ensues while the court publishes notice that the will has been filed.
  3. 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.
  1. The Executor must sign the Executor’s Oath, which will be notarized and filed with the court clerk.
  2. 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.
  3. 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.
  1. 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.
  2. 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.
  3. The Executor is responsible for making a written Inventory of the estate.  We can assist in this process to whatever degree the Executor prefers.
  4. 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.
  5. 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.
  6. Once the terms of the will are satisfied, the process is complete. Nothing further needs to be filed with the court.