Estate Administration Flashcards
Jurisdiction of probate proceedings
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
*Venue
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
*SOL to probate a will
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
*Independent Administration Free of Court Supervision
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
Powers exercisable by independent executor
- it is customary for the will to grant an independent executor all of the powers given to a trustee
- 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
Power of sale of real property
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
Consequence of independent administration
Is that most estates are administered the same way trusts are administered in all states: without any court supervision or involvement
Inventory filing or affidavit
- 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.
Accountings
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
For an estate under independent administration when and by whom may the closing or distribution of the estate be compelled?
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.
*What actions must the personal representative take within 120 days after appointment?
- must post fiduciary surety bond within 20 days
- must publish notice of administration in newspaper county within one month
- must file inventory within 90 days
- must give notice to named beneficiaries within 60 days
- Must certify that notice to beneficiaries was given within 90 days
When may an independent executor be removed ex parte?
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
When may an independent executor be removed after notice and a hearing?
- if he fails to qualify by posting bond
- fails to file inventory within 90 days or an affidavit within 90 days
- fail to give notice to beneficiaries within 60 days
- is incompetent or is sentences to penitentiary or a material conflict on interest prevents hm from properly performing his duties
Jurisdictional Rules for Guardianship Proceedings
Will be the same as the rules for estate administration
*Methods an estate can be administered when estate includes securities and real properties that are titled in the decedent’s name
Procedures to clear title:
- probate will as a muniment of title
- Statutory heirship proceeding
*Probate of Will as Muniment of Title
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.
Statutory Heirship Proceeding
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
Small estate administration
- 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
Can a small estate administration be used to clear title to the decedent’s homestead?
Yes, affidavit must be recorded in the county where the land is located
Can small estate admininistration be used to clear title to any other real property?
No, can only be used to clear title for the homestead
Standard of care to offer will into probate
an Executor must act in good faith when they offer a will into probate
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?
The executor should file certified copies of the will and the order admitting it to probate
The executor should file certified copies of the will and the order admitting it to probate
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
Priority as to who is to be appointed personal representative if will
- executor named in the will
- surviving spouse
- principal beneficiary named in the will
- any other beneficiary named in the will
- next of kin in nearest order of kinship
