Becoming the executor of their loved one’s estate means that you have just had a death in the family. That death may have been something that was completely out of the blue or could have been predictable based on a long battle with a serious illness, for example. Either way, the circumstances that you find yourself in are not ideal in any way shape, or form. The difficult emotions surrounding the death of someone in your family may also be joined by concerns you have about their finances or the well-being of your family after this person has passed away.
In some circumstances, you may have been named as the executor of your loved one’s estate in their will. Their will states the wishes of your loved one in terms of their property and how it should be distributed upon their death. Your job as the executor of the will is to execute on the person’s wishes and to ensure that their creditors if any are taken care of. While the instructions on what to do and how to carry out the will of your loved one are spelled clearly in the will itself this can be a difficult circumstance if you have never been through it before in addition to the emotions surrounding the entire process.
When you act as the independent executor of a loved one’s estate you have a duty under state law to treat all beneficiaries and creditors fairly. Acting as the executor of a loved one’s estate means that you must also be represented by an attorney. This means that the lawyer should be consulted before you take any action as an independent executor. By the same token, the lawyer must draft & any documents that are filed with the probate court. The first step that you must take as an independent executor is to file what is called an inventory within 90 days of the day you are certified as the executive by the court.
And inventory contains a list of all the property and assets owned by your loved one which will be distributed under the terms of their will. You are subject to being fined for not doing so. You should check with the rules of your specific court to see if there are any additional requirements but typically, it is fairly standard for a probate court to require that you file your inventory within three months of being officially named an executor. By filing the inventory on time you allow the court to understand what property is at stake and can begin to develop a plan to distribute property and pay creditors.
What are the responsibilities of an independent executor in Texas?
In addition to drafting and filing an inventory with the probate court, you must collect all assets of the estate. Any tangible assets listed under the inventory must be made available to the court for distribution. Vehicles, personal property, cash, safety deposit boxes, and the like must be collected and organized. Things like the title to real property must also be collected and kept to be distributed properly. Not only is it required of you to be organized in this way but it will be helpful for you in the court when it comes time to start dividing up property.
Once you are named as the official executor of your loved one’s estate you must also look through the will and determine who are the beneficiaries. Your loved one’s spouse, children, grandchildren, extended family, friends, unrelated persons, nonprofit entities, or other groups may be valid beneficiaries under the will. These people in groups may not even be aware of the passing of your loved one period as a result you need to be able to notify them not only of your loved ones passing but also to be able to let them know that they have been named as the beneficiary under the will.
In the same vein, but admittedly not with the same spirit, is your need to contact creditors who are owed money by your loved one. While no debt of your loved one must be paid by you, it is still your legal duty to contact creditors like credit card companies, mortgage holders, and other groups to notify them of the death of your loved one and their right to collect money under the estate as a creditor. The creditor will then be obligated to notify the court of their existence to be able to collect money that is owed to them.
As mentioned earlier, you must also file an inventory with the court which lists property and assets owned by your load one period this is the document that the judge and you will be operating from as far as your loved one’s estate is concerned. Certain property may have to be liquidated to pay creditors in any remaining property can be distributed to beneficiaries. The sooner you can get this document filed with the court the better off you will be. Remember that a fine is possible if you do not turn the document over in time.
Once you have notified all beneficiaries of the pendency of a probate case you must file an affidavit with the court certifying that notice has been provided. An affidavit is a sworn statement under the law. In this document, you will and notify the court of any beneficiaries as well as their knowledge of the pendency of the probate court and their right to be able to receive money or property based on the will of your loved one. However, your responsibility beyond notifying them is minimal.
Once you have learned of any creditors that are owed money by the estate of your loved one you won’t have to pay any debts. The probate court will assist you in determining which creditors should have first dibs on assets or property under your loved ones in a state. Generally speaking, secured creditors will go to the front underline while unsecured creditors like credit card companies go to the back. Mortgage companies, companies who helped your loved one financed a vehicle another creditor who holds collateral to their debts should be paced at the front of the line as far as being made whole.
Any attorney’s fees or court costs that were created as a result of this probate case should also be paid out of the estate. Before hiring an estate planning or probate law attorney you should talk to him or her about their fees and how they charge clients. This will give you a better understanding have what you can expect in terms of payment for the attorney but also how to prepare for organizing the case and ensuring that the necessary expenses of a case are accounted for.
Finally, it is only at this point that beneficiaries under the will can be paid any property promised to them in the will. All of the other expenses, debts, and things of that nature must be paid first before a beneficiary can collect on the property or assets promised to them or willed to them. Too many beneficiaries this is a shock. Many people do not know that creditors can swoop in and collect money and property under a will before they as beneficiaries are. Your job as the executor of the estate is to fulfill your duty under the law and the loved ones’ will. Your job is to not necessarily hold the hand of any specific beneficiary.
How do you become qualified to serve as the executor of your loved ones’ will or estate?
Once the court has signed an order that is admitting the will to probate, the court must then within 20 days appoint someone as independent executor. Once you are named as the independent executor of the will you will have the responsibility to file an oath signed and sworn to in court before a notary. This document will certify that you promised to fulfill the obligations required of you by the way Linda under the law in Texas. You are swearing an oath to fulfill the obligations that we just went through and the prior by post section.
What are letters testamentary?
Once you are officially named as the executor of her loved ones will you will be entitled to obtain letters testamentary from the probate clerk. The probate clerk works for the probate court that the will is being probated through. The clerk is the lead administrator for the court and handles logistical issues as well. What letters testamentary do is that they establish your right to serve as an independent executor of your loved one’s estate. This is very important because financial institutions, real estate professionals, and other persons will likely ask you for originals of your letters testamentary which had been certified within 60 days. It would be wise to have copies available at the wheel if you need to provide them in person or at least electronic copies to provide via email. You may also obtain certified copies of the will from the clerk for a small fee.
How do you notify creditors of the passing of your loved one and the filing of a probate case?
Understandably, you may not be aware of how to notify creditors of your loved one not only of your loved one’s passing but of the filing of a probate case. This is not an everyday occurrence and probably has not been a responsibility of yours previously. As a result, I wanted to take some time to be able to go over the general procedures involved in notifying a creditor.
Within one month of European named as the executor of your loved ones will you will need to publish a notice to creditors and newspaper in the county where your will is being probated. For example, in Houston, you would need to publish a notice in the Houston Chronicle notifying creditors of your loved ones’ passing. Instructions on how to do so can be provided to you by your attorney.
Next, you need to ensure that your notice includes the date on which you are qualified as the executor, the address of your attorney or yourself where claims can be presented as well as for instructions on how to address each claim. You may prefer to have each claim directed to you as the executor independently of your attorney, have your attorney addressed directly or in any other way that is viable under the law. In reality, you should be working with your attorney to verify the best way possible 2 address creditors and ensure that they are cared for appropriately.
Once you have published notice of the probate process in the newspaper you must then provide proof of publication to the court’s clerk. Part of that proof must be an affidavit from the publisher of the newspaper certifying proof that a notice was published in their paper. These are our all common practices and your attorney should be able to guide you more specifically on who and how to contact the newspaper.
both secured and unsecured creditors must be notified, as well. Within two months of your being qualified as the executor of your loved one’s estate, you must provide notice by certified mail to any creditor who has a claim for money against your loved one’s estate who is known as a secured creditor. Secured creditors hold collateral to debts in the form of a home call a car or other tangible asset. The same information included in your newspaper notice must also be provided to secured creditors.
Additionally, at any time before the closing of these states, you may choose to provide notice by certified mail to any unsecured creditor was a claim against the estate of your loved one. The notice must state that the creditor has to present a claim within four months after the date that they receive notice of the probate proceeding or they will not be able to do so.
Keep in mind that if you do not provide the requisite notice by the required dates listed above then you will become personally liable for any damage that the accreditor or person suffers. To my knowledge, this is one of the few areas where you stand to have personal liability as acting executor of your loved ones’ estate or will. This is all the more reason to ensure that do you have guidance from experienced probate in estate planning attorney during these critical steps in a case.
What about sending a notice to beneficiaries of the wheel?
Once the probate court judge has ordered at the will may be probated you have within 60 days to notify by certified mail every person, group, or entity who is named as a beneficiary. Specific information like the address and name of the beneficiary as well as the information of your loved one needs to be included. Your information and probably that of your attorney ought to be included as well for reference’s sake.
A bit more on the inventory
This is truly an area that your attorney must take the lead on as far as providing information to the court. The inventory must list all personal property of your loved one’s estate no matter where it is located. Cash and retirement, investment, and other account descriptions must be included. Identifying information like the last four digits of the account and the financial institution with whom the account is held must be included. When it comes to real property any real property that is located in Texas must also be included in the inventory.
Bear in mind that details regarding the property as far as whether or not it is in the separate or community estate of your loved one must be provided. The value of each piece of property and relevant information about the location of the property must all be included at this time. Importantly, you should not list any of the debts or names of creditors in the inventory.
Finally, even though you must have an attorney to probate your loved ones will there is no requirement that you must hire A specific attorney. Rather, you may hire an attorney of your choice to represent you. With that in mind, you still are responsible to treat all creditors and beneficiaries fairly no matter whom you choose to represent you and your family at this time. For this reason, I recommend that you consult with multiple probates and family attorneys to decide which to hire for this important responsibility.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog posts please do not hesitate to contact the Law Office of Bryan Fagan. Are licensed estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas probate law as well as about how your family may be impacted by the filing of a probate case or by the death of a loved one.