Steps For The Executor

An “executor” is the person named in the Will who is in charge of administering the estate of a person dying with a Will.  If you are named as the executor in a will, the following is a list of steps you will likely want to take to see to it that the person who named you as their executor has their possessions distributed the way he or she wanted.

Most likely, you will want the assistance of counsel to help you with your tasks.  Probating a will and administering an estate can be daunting tasks.  Most people cannot complete the tasks without competent legal help.  Judicial processes such as admitting a will to probate can be next to impossible for an non-attorney to complete.

The executor’s first task in probating any Will is to locate the original Will.  If the executor does not already have possession of the original Will, he or she should check in the following places:

A Will Must be Admitted to Probate to Have Legal Effect.  A written, signed, witnessed and notarized document entitled “Last Will and Testament” has no legal effect until a court with jurisdiction admits the document to probate. An “executor” named in a Will has no authority until he or she is appointed as the executor by the same court.  Therefore, the Will must be offered for probate before any legitimate action regarding the Will can occur.

Who Can Offer a Will for Probate?  An executor named in a Will, or any interested person, may make application to the court of a proper county for an order admitting the Will to probate and for the appointment of the executor named in the will.  “Interested persons” means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered, and anyone interested in the welfare of a minor or incompetent ward.

Deadlines for Probate.  There are deadlines for offering a Will for probate.  According to statute, no will shall be admitted to probate after the lapse of four years from the death of the decedent unless it be shown that the party applying for such probate was not in default in failing to present the same for probate within the four years.

Once the Will is admitted to probate and the court appoints an executor of the estate, the executor must qualify as executor by posting any required bond and by taking the executor’s Oath.  Many professionally drafted Wills waive the bond requirement for the executor of the estate.  If neither the Will nor the court waive the bond requirement, then the executor will have to post a corporate surety bond in an amount equal to the value of the liquid assets of the estate.  All executors must also take an oath to “well and truly” perform all of the duties of the executor of the estate.  This oath must be made before a notary public or the court clerk.

Once the bond and oath are filed, the court clerk will issue “Letters Testamentary” to the court-appointed executor.  These Letters Testamentary allow the executor to conduct all business on behalf of the estate.

Only after the court-appointed executor qualifies and is issued Letters Testamentary may the executor legally administer the estate.

Collect Estate Assets.  The executor of the estate has the duty to immediately collect all personal property, records, and other business papers of the estate (including bank accounts, certificates of deposit, property in safe-deposit boxes, etc.) and place them under his or her control.  It is very important to understand that an executor has a fiduciary duty to safeguard the estate’s assets for the benefit of the heirs of the estate until such time as the assets can be finally distributed.  For example, the executor must verify that all real property and automobiles belonging to the estate are covered by insurance.

If the executor is also an heir of the estate, it is important to realize that the property belonging to the estate does not belong to the executor until all claims and expenses against the estate have been settled.  Therefore, an executor must establish a separate account for the estate’s financial assets and hold any cash in the separate account until the estate is ready for distribution.  An executor should never commingle the estate’s assets with his own at any time.

File an Inventory of the Estate’s Assets.  The executor must also file an Inventory, Appraisement and List of Claims (the “Inventory”) with the Probate Court.  The Inventory includes complete descriptions of all of the assets of the estate with accurate valuations of the property.  The Inventory must be filed within 90 days after the issuance of Letters.  You will want an attorney’s help with the preparation and filing of the Inventory.

Notify Creditors.  The executor has a duty to notify certain creditors of the estate.

Published Notice (required).  Within one month from being appointed, the executor must publish a “Notice to Creditors” of the estate in a local newspaper.  An attorney can help with this notice.

Notice to Secured Creditors (required).  Within two months from appointment, the executor must also send notice of the executor’s appointment to any secured creditors of the estate.  The notice must be sent via certified mail, return receipt requested.

Notice to Unsecured Creditors.  Section 294(d) of the Texas Probate Code gives an executor a powerful tool to knock out creditor’s claims.  Section 294(d) allows the personal representative to start a four-month statute of limitations on a creditor (that has an unsecured claim for money against the estate), by sending the creditor a notice that meets the following requirements.

Receive Creditor’s Claims.  The manner in which a creditor must submit its claim depends upon the type of administration involved (independent vs. dependent administration), and whether or not the creditor received a notice pursuant to Section 294(d) of the Texas Probate Code.

Independent Administrations.

Creditor received notice under Section 294(d).  The creditor must give notice to the independent executor of the nature and the amount of the claim in:

Creditor did not receive notice under Section 294(d).  The creditor may give notice to the independent executor of the nature and the amount of the claim in any reasonable manner.  The Texas Probate Code does not specify any particular requirements.

Dependent Administrations.

The claims process in a Dependent Administration is very technical for both the personal representative and the creditor.  You should immediately contact your attorney before acting on any claims in a dependent administration as action must be taken within 30 days of receiving a claim.

Act on Creditor’s Claims.  The executor must act on all creditors’ claims that are submitted.  Once a claim is submitted, the executor must either allow or reject the claim.  In choosing whether to allow or reject the claim, the executor must decide whether the creditor submitted its claim in the correct manner.

After the executor has received all of the claims of the estate, the executor must pay the allowed creditors’ claims in accordance with the priority established in the Texas Probate Code.  That priority generally is as follows:

Pay Taxes.  There are also various tax filings that may have to be made on behalf of the estate and the decedent.  The preparation of tax filings, however, is a task that is best performed by a Certified Public Accountant or “C.P.A.”  The executor must  retain a C.P.A. to accomplish these requirements.

Distribute the Estate.  Only after the payment of all known claims and taxes may the executor distribute the remaining assets to the beneficiaries of the estate.

After a Will has been admitted to probate, any interested person may institute suit to contest the validity thereof, within two years after such Will shall have been admitted to probate, and not afterward, except that any interested person may institute suit to cancel a Will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward.  Also, incapacitated persons (for example, minor children) shall have two years after the removal of their disabilities within which to institute such contest.   Again, an “interested person” means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered, and anyone interested in the welfare of a minor or incompetent ward.