The concept of the independent administration is a significant distinction between Texas law and the probate laws of most other states in the country. While many other states have very complicated and costly probate procedures, Texas has simplified those processes and allowed certain executors and administrators to serve independently of the Court’s supervision. The result allows the probate process to move much more quickly and efficiently.
In an effort to answer some of the common questions about the independent administration, we have listed several of these questions below and provided answers for each.
How does an Executor become “independent”?
An executor can become independent in one of two ways — 1) the Decedent left a Will in which he specifically states that his executor should be independent, or 2) if the Decedent died without a Will or his Will did not allow for the independent executor, all of the heirs or beneficiaries under the Will can agree to allow the Executor to serve as the Independent Executor.
What are the Benefits of an Independent administration?
When the executor is not independent, he is then dependent upon the Court for oversight and approval of all of his actions. (For a more complete discussion of this type of administration, see the Dependent Probate Administration section elsewhere on our site). In a dependent administration, the executor is required to post a bond and to obtain the Court’s approval for all of his actions. The bond is similar to an insurance policy, and it will require the payment of a premium to an insurance company to insure against the executor’s theft or misapplication of the assets of the estate. Additionally, because the dependent executor must obtain Court approval for each action he undertakes in the probate case, he is required to have an attorney who expends numerous hours requesting the Court’s approval and accounting to the Court for the executor’s actions.
In an independent probate administration, the independent executor does not have to post a bond, and he does not have to obtain the Court’s approval prior to undertaking his duties. As a result, the estate avoids very significant costs that it would be required to pay if the executor were not independent.
What is required of the independent executor?
Whether independent or not, all executors have two types of responsibilities—1) those responsibilities they must fulfill to satisfy requirements of the Court, and 2) those requirements that they must fulfill to satisfy their obligation to the heirs and beneficiaries of the estate.
The independent executor is going to have the same responsibilities to the heirs and beneficiaries of the estate as any executor or administrator—he will be required to 1) collect the assets, 2) pay off any debts, and 3) distribute the assets according to the Will or according to Texas law if the Decedent did not leave a Will. As part of this process, the independent executor is also required to satisfy a couple of requirements to the Court — 1) to publish notice to potential creditors in a newspaper and 2) to file an inventory with the Court showing the assets of the estate. In our section entitled Role of the Executor, you can obtain more complete information regarding the requirements for publishing Notice to the Creditors and filing the Inventory are explained.
How long do I have to seek an Independent Administration?
Whether someone dies with or without a Will, the Court can generally only appoint an executor for up to 4 years after the date of the Decedent’s death. After that 4 year period expires, the Court is virtually without the authority to appoint an executor or to allow the administration of the Decedent’s estate. While it is usually advisable to initiate the probate process as soon after someone’s death as possible, it must be done within 4 years of their death, or the process by which their estate is divided becomes much more complex.
When is the Independent administration not a good idea?
Most probate Courts in Texas will prefer to have an independent executor instead of a dependent administrator. However, in a couple of instances, the executor may prefer to be dependent. First, certain rules govern how creditors are able to be paid in a dependent administration that do not apply in an independent administration. These rules make it more difficult for creditors to obtain payment from the Estate, and as a result, those estates with high debts may choose a dependent executor rather than an independent, simply because it may mean that the creditors have a harder time obtaining payment.
Second, some executors prefer to be dependent if they anticipate fights among the heirs of the Estate. In those situations, the executor may prefer to have the Court approve each and every action the administrator undertakes so that later disputes among the family members can be resolved through rulings by the Court rather than litigation against the executor.
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[06/14] — F+B Managing Partner Don D. Ford III spoke at South Texas College of Law's 29th Annual Real Estate Law Conference June 6, 2014.
[03/14] — Ford + Bergner's Houston Office is Moving Effective April 1, 2014
[03/14] — F+B Senior Associate T. Aaron Dobbs was named a Rising Star in Estate & Trust Litigation by Texas Monthly Magazine.