Estate Administration

Question 1

Jurisdiction of probate proceedings

Answer 1

All probate proceedings must be filed and heard in county court

Large counties: statutory probate courts will have exclusive jurisdiction

Medium counties: county court at law will have jurisdiction

Small counties- constitutional county courts will have jurisdiction

Question 2

*Venue

Answer 2

Texas resident: county of domicile of decedent at time of death

Nonresident: if nonresident dies not TX, venue will be either in the county where his principal assets were at time of death or county where he died

Question 3

*SOL to probate a will

Answer 3

Will must be probated within four years, unless it is shown that the applicant was not in default in failing to present the will within the four-year period

If after 4 years, normal probate will not happen. The will can be probated only as a muniment of title

Question 4

*Independent Administration Free of Court Supervision

Answer 4

A will may name an independent executor, and provide that no action shall be held in the courts other than probate of the will and filing an inventory (or an affidavit in lieu of inventory) and list of claims of the estate

After a will had been admitted into probate and the person designated as independent executor has been qualified, she then files with the court an inventory of estate assets, an appraisement, and list their value, and a list of claims of the estate

Then she administers the estate, paying or disallowing creditors’ claims and distributing the net estate to those entitled without any court involvement or supervision

Question 5

Powers exercisable by independent executor

Answer 5

1. it is customary for the will to grant an independent executor all of the powers given to a trustee
2. Absent that expansion in the will, the executor will have the power to do any act, without court oder, that an executor under a dependent administration could be authorized to do by court order (power to sue or be sued, pay or deny claims, set arise family allowance and exempt property, operate a business that is part of the estate, and make a distribution of assets

Question 6

Power of sale of real property

Answer 6

If a will contains a power of sale, real property can be sold by an independent executor irrespective of the existence of estate debt

If there is no power of sale, the property may be sold only to pay debts and expenses and to satisfy the family allowance or other statutory allowances

Question 7

Consequence of independent administration

Answer 7

Is that most estates are administered the same way trusts are administered in all states: without any court supervision or involvement

Question 8

Inventory filing or affidavit

Answer 8

• independent executor must must file an inventory (or an affidavit in lieu of inventory to secure privacy) within 90 days after will is admitted to probate
• affidavit in lieu of inventory: affidavit that states that all debts have been paid.

BUT

beneficiaries must receive full inventory to all beneficiaries, other than beneficiaries who:
(i) have been bequeathed property valued at $2k or less, (ii) have received distribution of their bequests, or (iii) have waived the right to inventory in writing.

Question 9

Accountings

Answer 9

Interested parties are entitled to an accounting from independent executor upon demand no sooner than 15 months after will admitted to probate, and successive accounting on demand 12 months after the last accounting was rendered

Question 10

For an estate under independent administration when and by whom may the closing or distribution of the estate be compelled?

Answer 10

Petitioning for Distribution of the Estate

interested party can petition for distribution of the estate within 2 years after independent executor was appointed

leads to a show-cause hearing for independent executor where she must show why she hasn’t distributed assets yet.

Question 11

*What actions must the personal representative take within 120 days after appointment?

Answer 11

1. must post fiduciary surety bond within 20 days
2. must publish notice of administration in newspaper county within one month
3. must file inventory within 90 days
4. must give notice to named beneficiaries within 60 days
5. Must certify that notice to beneficiaries was given within 90 days

Question 12

When may an independent executor be removed ex parte?

Answer 12

by the court ex parte without notice and hearing if he cannot be served with process because his whereabout are unknown or is eluding service, is a non-resident without a designated agent; or

there are sufficient grounds to believe that he has misapplied or embezzled estate funds

Question 13

When may an independent executor be removed after notice and a hearing?

Answer 13

1. if he fails to qualify by posting bond
2. fails to file inventory within 90 days or an affidavit within 90 days
3. fail to give notice to beneficiaries within 60 days
4. is incompetent or is sentences to penitentiary or a material conflict on interest prevents hm from properly performing his duties

Question 14

Jurisdictional Rules for Guardianship Proceedings

Answer 14

Will be the same as the rules for estate administration

Question 15

*Methods an estate can be administered when estate includes securities and real properties that are titled in the decedent’s name

Answer 15

Procedures to clear title:

1. probate will as a muniment of title
2. Statutory heirship proceeding

Question 16

*Probate of Will as Muniment of Title

Answer 16

When decedent left a valid will and there is no need to have estate formally administered (even if will named executor), but formal recognition (e.g. in land records, stock certificates, bank account) is needed to establish title transfer to beneficiaries so they may gain ownership.

Order admitting will to probate as muniment of title can only be entered if there are no unpaid debts other than the mortgage on the homestead (funeral expenses, debts, etc. should be paid before)

Ex.: In land cases, Muniment of title serves the same record function as a deed.

Question 17

Statutory Heirship Proceeding

Answer 17

Serves same function as muniment of title, but applies to intestacy

A judgment given by the court when the D dies intestacy

Helps clear up title on real property and securities

A court judgment that states the person died intestate, names and addresses of person’s determined to be the heirs, and shares of the estate each is entitled to take

Question 18

Small estate administration

Answer 18

• Can be done through an affidavit if decedent died intestate (not if will was left!!)
• the value of the probate estate must be less than $75,000 (not including homestead, exempt personal property, and not counting non probate assets)
• the affidavit which is issued by the court clerk serves the same function as letters testamentary granted to an executor
• person who gets one of these affidavits will be able to use it to collect the decedent’s assets

Question 19

Can a small estate administration be used to clear title to the decedent’s homestead?

Answer 19

Yes, affidavit must be recorded in the county where the land is located

Question 20

Can small estate admininistration be used to clear title to any other real property?

Answer 20

No, can only be used to clear title for the homestead

Question 21

Standard of care to offer will into probate

Answer 21

an Executor must act in good faith when they offer a will into probate

Question 22

If will is probated in a different jurisdiction then where a piece of real property is located, what should be done to show the new record title?

Answer 22

The executor should file certified copies of the will and the order admitting it to probate

Question 23

The executor should file certified copies of the will and the order admitting it to probate

Answer 23

If first probate was validly entered and the BFP relies on the valid court order then it will be protected.

The person who wrongly sold the property will be liable to give the proceeds to the real person entitled to them under the will

Question 24

Priority as to who is to be appointed personal representative if will

Answer 24

1. executor named in the will
2. surviving spouse
3. principal beneficiary named in the will
4. any other beneficiary named in the will
5. next of kin in nearest order of kinship

Question 25

Priority as to who is to be appointed personal representative if no will

Answer 25

1. surviving spouse

2. next of kin in nearest order of kinship

Question 26

Who cannot be appointed as a personal representative

Answer 26

1. minors
2. incapacitated persons
3. convicted felons
4. a person whom the court find unsuitable

Question 27

Can a nonresident serve as administrator of a Texas estate or as guardian of a proposed ward’s estate?

Answer 27

Yes, but he has to appoint a resident agent for service of process so creditors can file action against him in Texas courts

Question 28

Temporary Administrator

Answer 28

if immediate action must be taken before a permanent personal representative is appointed (e.g. will contests), temporary administrator can be appointed to carry put limited duties given to it by probate court.
-limited to those powers granted by the court;

Statutory list of priority for personal representative appointment does not apply.

-temporary administration cannot exceed 180 unless for a will contest;

Question 29

Dependent Administration

Answer 29

Traditional estate administration in which most steps are directly supervised by the court.

This will occur when the decedent did not leave a will naming an independent executor and either the distributes cannot agree that there should be an independent administration or the probate judge finds that an administration is not in the best interest of the estate

Question 30

When is an independent administration authorized under the Estates Code?

Answer 30

• provided for in the will (however informal; e.g. “without any of that court stuff”) (but not if it expressly says no independent administration)
• if all distributees I agree to an independent administration and court finds that it is in best interests of the estate.
• If ind. exec. IS NAMED in the will, probate court cannot veto

Question 31

What is an affidavit in lieu of an inventory?

Answer 31

B/c inventory becomes public record, to secure privacy, after all debts have been paid, an ind. exec. can file an affidavit in lieu of inventory stating that all debts have been paid

However, ind. exec. must prepare full inventory and give a copy to the beneficiaries

Question 32

Reliance on Order from Muniment of Title or Statutory Heirship Proceeding

Answer 32

Party (e.g. bank) who relies on order is protected as if they had made payment to decedent’s personal representative

Question 33

Expenses Occurred in Defending Wills

Answer 33

Personal representative or beneficiary is entitled to expenses occurred in defending/contesting the will, even if unsuccesful, if the action was brought in good faith.

Question 34

Persons disqualified from appointment as personal representative:

Answer 34

• minors
• incapacitated persons
• convicted felons
• person whom the court finds “unsuitable” (e.g. misdemeanor embezzlement conviction
• severe adverse interest of estate (but deference given to testator)

Question 35

What if BFP taking real property under a will admitted for probate sells the property and then a later will is found that said revoked the first will and says that the property is devised to another person?

Answer 35

Later person loses because the first will admitted to probate was valid and BFP who relied on it is protected.

BUT

later person can sue to recover sale proceeds

Question 36

Can executor be held liable for damage to estate property?

Answer 36

Yes - if they failed to act as a prudent person re: the property (e.g., failing to insure boat)

must insure if a reasonable person would have