Probating Wills
Probating Will is part of the process of administering an estate. The courts will issue out “Letters of Testamentary” to the executor named in the Will and appointed by the court. A Will is not valid until it is admitted by the judge. There is no requirement of the reading of a Will. The executor is to gather the estate assets, deal with creditors and final expenses, and then distribute remaining assets to the heirs.
You should probate a Will within four years or the Will could be in default
Letters of Testamentary are what financial institutions will require before turning over funds to an estate
Accounts with designated beneficiaries are not part of a probate estate unless….
A copy of a Will is not automatically sufficient nor valid
An executor in a Will has a fiduciary duty to heirs
Heirs are entitled to an accounting within 15 months under the estate code
Heirs are allowed to compel a distribution within two years after Wills is admitted.
Estate administration
When there is no Will or no valid Will, then an estate administration process done in a proceeding called a Determination of Heirship and Administration. If an administrator is agreed upon by all heirs, then they can have an Independent Administration with little court oversight. Otherwise, by default, it is a Dependent Administration whereby the appointed fiduciary needs to be bonded. They will be issued “Letters of Administration” by the court. The administrator should gather the estate assets, deal with any creditors, and then distribute to heirs pursuant to the order from the court in a proceeding called the Determination of Heirship.
The administrator should keep estate assets in an estate account
They have a fiduciary duty to the heirs.
They can be held to account
They can be removed for failing to account or wasting estate assets among other things.
Real Property should be protected and put to use or sold
Estate Accounting when there is a Will: This is true of Trusts, Estates with and without Wills.
Sec. 404.001 of the Texas Estate code provides the following rules for Requirements of an ACCOUNTING.
“After the expiration of 15 months after the date that the court clerk first issues letters testamentary or of administration to any personal representative of an estate. Any person "interested" in the estate may demand an accounting The personal representative shall furnish to the persons making the demand an exhibit in writing, sworn & subscribed by the personal representative, setting forth in detail: (1) the estate property that has come into the executor's possession as executor; (2) the disposition that has been made of all the property. (3) the debts if any that have been paid; (4) the debts & estate expenses, if any, still owing by the estate; (5) the property of the estate still remaining in the executor's possession; (6) other facts as may be necessary to a full and definite understanding of the exact condition of the estate; and (7) the facts, if any, that show why the administration should not be closed and the estate distributed. (b) Should the fiduciary not comply with a demand for an accounting authorized by this section within 60 days after receipt of the demand, the person making the demand may compel compliance by an action in the probate court. After a hearing, the court shall enter an order requiring the accounting to be made at such time as it considers proper under the circumstances.(c) After an initial accounting has been given by an independent executor, any person interested in an estate may demand subsequent periodic accountings at intervals of not less than 12 months (d) The right to an accounting accorded by this section is cumulative of any other remedies which persons interested in an estate may have against the independent executor of the estate.”
Fiduciary Duty of Executors, Trustees, and Administrators
Locate and examine the Will and trust documents;
Locate beneficiaries and heirs of the estate;
Notify creditors by publication and other interested parties;
Pay valid debts from creditors and final expenses;
Collect, inventory, and safeguard estate property;
Appraise and value assets in an inventory that must be filed with the court and verified and sworn to;
Pay the deceased's final income taxes;
Determine and handle federal estate tax obligations;
Sell or transfer title to real estate, vehicles, and other assets;
Maintain detailed records of transactions handled;
Distribute assets and account to the court or heirs as necessary