What is An Independent Administration in Texas

(This is the second in a series regarding probate procedures in Texas)

In California, probate of a will for a simple $1 million estate takes 2 years and costs $23,000 in attorneys’ fees.  In Florida, the probate of the same estate takes at least 9 months and costs $30,000.

Then there is Texas, where the same probate takes less than 6 months and costs under $5,000.

Can we get an Amen?

Texas can offer such a great deal because it has a streamlined probate process called Independent Administration. In an Independent Administration, the Executor acts without court supervision.

What Is An Independent Administration in Texas?

An Independent Administration is available if the decedent died leaving a valid will that named a person or entity to serve as an Independent Executor. Including this magic language in the will means that the only action required in court is filing an application for probate, giving notice, appearing for a brief hearing, filing a proof and an oath, and preparing an inventory. Most Independent Executors do not even have to post a bond.

The administration of an estate under an Independent Executor is simple and quick. After being appointed, the Independent Executor settles the estate by gathering assets, paying claims, filing a final tax return and then distributing the remaining assets to the beneficiaries.  There is no further court involvement.

Comparing Texas, California and Florida Attorney Fees

Now for attorneys’ fees. An Executor can only interact with the Court through an attorney. Because Texas requires so little court involvement, most attorneys have a limited role and therefore can charge a flat fee for filing a simple probate. Texas law requires only that the fee be reasonable. Thus, attorneys’ fees in Texas are set at a competitive rate.

In contrast, an estate executor in California or Florida must work under court supervision and must ask for court approval at every step of the probate. That, in turn, means more attorney involvement. California and Florida have statutes that set attorneys’ fees as a percentage of the probate estate, which can lead to some substantial sums.

To be fair, not all probate estates in Texas are handled on a flat fee basis. Some estates are complex. There may be assets such as timeshares, foreign interests or oil and gas interests that take more time to settle. The administrator may need to contest certain claims. There may be tax issues.  Sometimes beneficiaries cause problems. There may be ambiguities in the wording of the will.  Occasionally a probate court can be so backlogged that a probate estate cannot be opened quickly and requires more attorney action. When an estate becomes complex, the Independent Executor usually needs the attorney to be more involved. Most attorneys will charge an hourly rate for complex estates.

Probates Are Easier in Texas

The upshot is that most probates in Texas are easier, cheaper and less burdensome than probates in California and Florida. For those lucky Californians and Floridians moving here, it is time to reevaluate your estate planning documents. For Texans, you need to have a will containing the magic language.

Attorney Services Available in Lewisville, Texas

Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation.  To receive her newsletter contact her at legaltalktexas@hammerle.com.