Checklist for the Texas Surviving Spouse, Trustee, or Executor – Part 4

Memento mori – “Remember that you have to die”

This is a five-part series designed to assist the surviving spouse, executor or trustee. The series is presented in a checklist format. Each checklist can be used independently and can also serve as a reference for successor executors and trustees.

Every estate or trust administration is different. This list is not intended to be a list of everything you will encounter in a Texas trust or estate administration and is for informational purposes only. The list is not intended to be specific legal advice for you. Estate administration is work, and it takes time. Finally, you should read the entire checklist, events and actions in a probate may not follow the order as set forth in this checklist.

The Probate or Trust Administration Phases

Over the next few posts we will examine in checklist format the following phases of the Probate or Trust Administration Process:

The checklist continues with filing for probate.

Part 4 – Probate

Please feel free to use our interactive checklist, in order to help you along your emotional and complex journey.

 Begin Probate. Your probate attorney will file the original will with the court with an application. Tip: The probate process in Texas is governed by the Texas Estates Code, Property Code, and other Statutes, Local Rules set forth by Counties, Custom and Practice of Judges, Common Law, and the Instrument Itself (Will or Trust). Your experience may be drastically different than a friend’s, co-worker, neighbors, or even the last time you served as Executor or Trustee).

 Acknowledgment: Make sure you are qualified to serve in the role of Executor and Trustee. In Texas, you have to be (1) above the age of 18, (2) a Resident of the State of Texas or Appoint a Resident Agent, (3) Never adjudicated to be incapacitated, (4) Never committed a felony, and (5) a person otherwise qualified to serve. If you have questions regarding your qualification, you should review the matter with your probate attorney. When you testify you will be under oath and the Judge may directly inquire regarding your qualification.

 Acknowledgment: The probate attorney cannot just schedule a hearing. Texas provides for a statutory notice period (10 days), the probate attorney can schedule the hearing after this date, but generally, it takes much longer to get into court – sometimes a month or two depending on the county, court and time of year.

 Pre-Hearing Documents. Generally, for a basic probate, the probate attorney will provide you with a Proof, Order and Oath for your review prior to the hearing. More complicated probates require other documents. If you are an out-of-state executor you will also have to appoint a Resident Agent in Texas. Tip: This is often your Texas probate attorney. Some counties in Texas also require Personal Representative Information sheets, Local Checklists, and even that Death Certificates be presented to the court before the hearing.

 Pre-Hearing Meeting. You should have a pre-hearing meeting with your attorney to review your testimony, learn what is required of you, make sure you know when the hearing is scheduled and the location of the courthouse.

 Attend Probate Hearing. An Executor or Administrator will be qualified during this hearing, and Letters Testamentary or Administration will be obtained at the conclusion, unless additional filings are required by the court. Tip: Letters Testamentary or Administration are issued by the clerk of the court – not the probate attorney or Judge. Also, always be polite to Judges, Court Staff and Clerks. Generally, you will not need to bring anything to the hearing, other than a checkbook for fees, perhaps. The probate attorney will provide all the necessary paperwork and generally has already filed the documents with the court before the hearing. You should dress appropriately for court, always treat the court with respect and never interrupt the Judge or your attorney. Although the Court does not represent you some courts will provide you with additional information, and even handouts regarding the probate process at the conclusion of the hearing. Most Texas probate Judges are great about staying on time and most basic probate prove-up hearings are brief settings (less than 15 minutes). Generally, the total time to budget at the courthouse should be about an hour. Note, the above is for an uncontested matter. If the matter is contested, the above does not apply and the probate will be much more involved and take much more time.

 Formal Administration can begin upon the issuance of Letters Testamentary or Letters of Administration by the Court Clerk.

 Comply with Texas Estates Code During Administration. The following items are generally handled by the probate attorney: Required Notice to Beneficiaries, Creditors, Specific Notice to Certain Entities (like Secured Creditors) & Filing of Inventory, Appraisement and List of Claims. Tip: The Inventory, Appraisement and List of Claims consists of only probate assets, personal property and Texas real property, claims are owed to the estate not debts. Also, provide your probate attorney with the information to complete these tasks in a timely manner. Each probate is different and you should seek the assistance of your probate attorney regarding the unique matters that relate to your case.

 Sign the Order Approving the Inventory, Appraisement and List of Claims of File an Affidavit in Lieu of Inventory. Generally, Court involvement ends with the signing of an Order Approving the Inventory, Appraisement and List of Claims or the filing of an Affidavit in Lieu of Inventory. Tip: Your probate attorney can control the timing of filing the Inventory, Appraisement and List of Claims, but generally the probate attorney has no control over the Court regarding timing of signing the Order. As stated before don’t contact the court directly. Also, don’t assume that the probate attorney will be notified that this order has been signed – often we learn about it days and weeks after the fact. Generally, in Texas, the Independent Administration is not formally closed and no final accounting is filed. Procedures do exist to formally close a Texas probate, if this is a concern, the matter should be reviewed with your probate attorney. Even though the Order approving the inventory is signed, the Independent Administration can continue.

 Continue Administration. Administration may involve probate and non-probate assets.

 Acknowledgment: The probate process can take time and involve some expense. You cannot represent yourself in Texas Probate. Your probate lawyer is there to guide you through the process, as the court and court staff cannot give you legal advice. Tip: The Judge and Court staff don’t represent you – always call your probate attorney for assistance.

 Meet with your Attorney. Have a closing meeting with your probate attorney at the conclusion of Administration or upon Order Approving Inventory Appraisement and List of Claims being signed.

 

What are the Next Steps?

In our final segment, Part 5 we will discuss administration.

Regarding any Texas probate or trust administration, you are well advised to seek the assistance of a Texas Probate Attorney to help with the probate process. For questions regarding this topic or other probate or estate questions please contact The Wright Firm, LLP – Board Certified Texas Estate Planning and Probate Attorney & CPA – Paul F. Wright at (214) 780-9696 or paul@thewrightlawyers.com.

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