217 E. Oak Street
Denton, Texas 76201
(940)323-1300
(940)323-1400 (fax)
(877)592-1300 (toll free)
This document represents information about your anticipated appointment as a Personal Representative of a Probate Estate, whether as an Executor, independent Executor, Administrator, Independent Administrator, Temporary Administrator or a successor to any of the above. Please retain this document for future reference. This summary is not intended to discuss all matters relating to your appointment as a Personal Representative or to be an exhaustive treatment of Texas Probate law; it is really just an overview and it will be useful for reference purposes over time. Many of the matters discussed in this document have been or will be discussed briefly with you at various times or you may have read about them on this web site or in other articles on Probate.
As the appointed Personal Representative of an estate you have initial job to take an oath and obtain a bond, if required, to qualify for your appointed position. As an appointed and qualified personal representative you have the general duties to collect all of the property owned by the decedent at the time of his or her death, determine the value of that property as well as any debt owed to the estate and file an inventory and list of claims with the Court. You need to notify creditors and obtain any outstanding debts or claims owed by the estate. For the property that you take control of, you have a duty to take care of that property of the estate as a “prudent man” would take care of his own property. In the case of buildings belonging to the estate, your duty is to keep that building in “good repair” unless ordered otherwise. After paying all valid claim in accordance with the law you distribute the remaining property to the beneficiaries or determined heirs of the estate, and close the estate.
Before any appointment can be had, an “application” will need to be filed requesting appointment to the particular type of personal representative. The specific type of personal representative, whether it be Executor, Independent Executor, Administrator, Independent Administrator, Temporary Administrator or a successor to any of the above, will be determined by you and your attorney taking into account the particular facts of the case. You will be asked to provide, or information will have to be obtained, abut the Decedent’s estate, heirs at law, and beneficiaries in the will if any, for inclusion in the Application. The Application will be drafted, filed and notice to the appropriate people and entities will be completed by your attorney. After the passage of statutory notice periods of time, your application is ready to be herd by the Court. Depending on the responses filed by other parties if any, you and your attorney will set your application for a trial. This trial may consist of a fifteen minute prove up, an uncontested trial, or a multiday trial to the Judge of the Court or to a jury. After you have been appointed as the personal representative you must qualify. Qualification is accomplished by the taking of an oath of office on or after the day the order appointing is signed by the court and obtaining a bond, unless the bond is waived by the will. In most wills calling for an independent executor, a bond is waved. The bond is mandated, were not waved, by the Probate Code to protect the estate against misconduct by the personal representative that causes financial cost or loss to the estate. If a bond is necessary there are three types that are usually accepted by the courts. First is a corporate surety bond. This is a bond that is backed by a company that is licensed by the state to write bonds and you will need to go through a process mandated by the bonding company to see if you meet their qualifications to be bonded for the amount ordered by the court. Second is a cash bond. This is a bond that you deposit the amount of cash with the court in the amount of the bond. Lastly there is a personal surety bond. This bond is created by having two people that are not married, that have non exempt property in this state in the amount or in excess of the amount of the band, that will sign the bond, that personally guarantee up to the amount of the band. The date that you “qualify” is important because many of your filing deadlines, for example the time to file your inventory and accountings, are based on a set number of days calculated from this date. Your qualifying also entitles you to receive Letters Testamentary or Letters of Administration or Independent Administration. The Letters Testamentary or Letters of Administration or Independent Administration evidence your appointment as personal representative and your authority to act for and on behalf of the probate estate. You will be provided with original Letters for your use. You may need additional Letters at various times in the future. If so, please give us a call and we can usually order and receive them within two days.
An appointed and qualified personal representative is the legal representative of the decedent’s estate. Generally, a personal representative is entitled to the possession and management of all property belonging to the estate, to collect all debts, rentals, or claims that are due the estate and to bring and defend suits by or against the estate. There are some important exceptions to this that will have to be discussed with your attorney after the specifics of the case are known.
Immediately after receiving Letters, a personal representative is expected to collect and take possession of all of the personal property, record books, title papers, and other business papers of the decedent’s estate. In order to take possession of bank accounts, investment accounts, etc., you will need to provide the financial institutions with your Letters. Each institution has different policies; some will only require a copy of your Letters, others will require a certified copy of our Letters which can be obtained for you.
The next order of business with the Probate Court is to prepare an Inventory, Appraisement and List of Claims. The inventory must be filed with the Probate Court within ninety days after you qualify, unless the Court grants you an extension. The inventory is a record of all the property of the Estate that has come into your possession or knowledge. The list of claims consist of all the debts owed to the estate and information regarding that debt. At our initial conference you are given an “Information Form for Inventory for Probate Matter” which you need to complete as soon as possible. You need to provide complete information such as bank account numbers, policy numbers, legal descriptions, vehicle identification numbers, etc. You are the only person who has or is able to obtain this information. By not furnishing this information, a delay in completing and filing your inventory will occur. If additional property is discovered after the Inventory is filed, an Amended Inventory can be filed.
We will prepare the inventory for execution by you from the information you provide us and, after it is executed by you, we will file the inventory with the Court and obtain an Order approving it.
Within one month from the date of your qualification, i.e., receiving your Letters, a statutory notice must be published to the general creditors of the estate. This office will prepare and file that notice on the permanent guardianship.
Within two months from the date you receive Letters, you also must give actual notice of the issuance of your letters, by certified mail to each and every person known to the personal representative to have a claims for money against the estate of the decedent that is secured by real or personal property of the estate. After being appointed as a personal representative if you find out that there is other secured claimants out there you must, in a reasonable time after the personal representative obtains actual knowledge of the existence of a person having a secured claim for money and to whom notice was not previously given, give notice to that person or persons of the issuance of letters.
If you fail to give the required notice, you and your surety can be held liable for any damages that any person suffers as a result of the failure to receive the notice.
Accordingly, we ask that you provide us with a list of all such creditors that you are aware. Please include in this list the name, address, and general description of the basis of the claim. If the claim is based on an account, such as a credit card, please provide us with the account number so we may reference the account in our notice. The other option is to simply provide us with copies of the most recent statements or notices relating to these potential creditors. These will generally provide us sufficient information to prepare the notices. Note that, potential creditors may include anyone holding a mortgage on any of the real properties, outstanding utility expenses, i.e., water, gas, electric and/or telephone, personal debts (such as credit cards), or any other unpaid bill or claim.
Once we receive the list or other documentation, we will prepare the notices and forward them to the respective potential creditors. To ensure that all creditors, if any, are given the requisite notice, please provide us with the information within 10 days from the date your are appointed as the personal representative.
Please keep accurate records of all income, receipts and disbursements which are placed into and taken out of the probate estate accounts. If the administration is a “Dependant” administration, it will be necessary to report all receipts and disbursements, possibly each year, but at a minimum at the end of the administrative process, to the court.
Finally, you are responsible for the filing of the Estate’s income tax return and paying all taxes that may owe when due for the years that you administrate the estate. We do not prepare these individual income tax returns and we suggest that you discuss the handling of these returns with an accountant as soon as possible. If you wish to hire an accountant to prepare these income tax returns, we will need to, in a dependent administration, file an application with the court to obtain court approval to retain the accountant.
If you have any questions about your duties as a personal representative or any other matter, please do not hesitate to call this office at any time.
Feel free to contact our officeregarding any questions you may have, or to schedule an appointment.
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