How To Get Appointed Executor – Dallas, TX
An executor or administrator is someone who is given the legal responsibility to take care of a deceased person’s remaining financial obligations. The primary job of the executor is to protect the deceased person’s property, to make sure the final property debts and taxes have been paid off, and to distribute assets to those who are entitled to them according to the will.
There are many scenarios which will require different processes to becoming an executor or administrator, and it is recommended to seek help from a local legal professional who understands the rules and regulations well. At Pyke and Associates, we can help guide you through the process so that you will be well-prepared to file as an executor. However, we have put together some general guidelines that one should be familiar with in regards becoming an executor.
HOW DO I GET APPOINTED EXECUTOR?
If there is a Last Will, it more than likely names the executor. If you have been named as the executor of a will, you should then check to be sure that you are legally eligible serve as the executor. Make sure to check with a Texas probate attorney in your area (whether that be Dallas, or any other area), or your local court, but some of the common requirements are listed below.
Some states have legal requirements that must be met. For example, in Texas, the executor must:
- Be at least 18 years old and of a sound mind — that is, not judged incapacitated by a court. (Tex. Est. Code Ann. § § 304.003, 1002.017, 1002.019.)
- Not have been convicted of a felony under any state or federal law, unless he or she has been pardoned or had all civil rights restored. (Tex. Est. Code Ann. § 304.003.)
- Not have a conflict of interest or be otherwise “unsuitable.” (Tex. Est. Code Ann. § 304.003; 931 S.W.2d 607.)
Once you are certain of eligibility, a petition must be filed for probate. Even if you are appointed executor by the will, you cannot act as executor until the court appoints you.
You must also qualify by taking the executor’s oath and posting any required bond, although, sometimes the bond is waived by the court or by the will itself.
In addition to the probate process, all beneficiaries named in the will must receive notice about the death and probate hearing in order to give them a chance to object the will’s appointing of the executor.
Once the executor is approved by the court, that person is granted “Letters Testamentary”. These letters allow the executor to legally act on behalf of the estate and to gain access to the financial accounts of the deceased.
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IF AN EXECUTOR IS NOT NAMED IN THE WILL
If an executor is not named in the will, the person appointed to handle the estate is called an “administrator.” Essentially, the same job as an executor but with a different title. If you have determined that you are qualified to become the executor, you will need to hire an attorney to pursue a proper application to be appointed. The Courts will not allow you to do this without legal representation since you are representing more than yourself – you have obligations to the Estate and to the Court.
The big issue when there isn’t a will is whether the administration can be “independent.” Most executors serve independently of the Court. Once appointed, they have very little court supervision.
An administrator can only act independently if all of the heirs of the deceased agree that 1) that person can be administrator; 2) no bond is necessary; and 3) that the selected administrator need not be court supervised.
If even one person objects – actually, just fails to consent – the administration must be court supervised.
Court supervision adds significantly to the cost of probate, but it is shared equally by all heirs and is usually only paid out of the assets of the estate, subject to Court approval of the attorney fees.
Therefore, if you desire to be administrator, and all of the heirs consent, the Court will require proof – in the form of a declaration of heirship – just who the heirs are. Thus, with any application for independent administration, there must be an application for declaration of heirs.
Once the administrator is appointed, if the administration is independent, notices and inventory (or affidavit in lieu) must be filed just like an executor. If the estate is court supervised, each step of the process must be approved by the Court and the assistance of an attorney is essential to comply with the Texas Estates Code.