Poor Planning Leaves Few Alternatives – Fixing the Mess

Despite the availability of one of the easiest probate procedures in the Country, courts in Texas still regularly deal with the laborious process of a Dependent Administration. Why? Because for some inexplicable reason there is a multitude that continues to fail to properly plan.

The easy procedure is called an Independent Administration. In an Independent Administration, the Administrator has only one short court hearing and can then settle the probate estate without any other court intervention. There are no motions for approval, no reports of sale, no accountings, no requests for distribution and no outlandish legal fees.

So why can’t every estate have an independent administration? Because for an Independent Administrator to be named, there has to be a properly drawn will that states the Administrator, or Executor, will serve without court supervision or words to that effect. Unfortunately, too often the wills that make it into probate court are poorly drawn, are drafted in some misbegotten state where independent administration is not available, are handwritten by the newly departed, or are so old that all of the named executors are dead or otherwise unavailable. There are even situations where – gasp – there is no will.

In such a dismal circumstance, there remains one beacon of hope – the creation of an Independent Administration by Agreement.

It may seem obvious, but the whole “by agreement” part means that all of the distributees (beneficiaries if there is a will, heirs if there is not one) of the decedent have to agree on all parts of the procedure. It only takes one holdout to send everyone back into dependent administration hell.

On what must they agree? They have to agree on the advisability of having an independent administration and then designate the person who will serve as independent administrator. They must request in the written application that no other action shall be had in probate court other than the probating and recording of the decedent’s will and the return of an inventory, appraisement and list of claims of the decedent’s estate or, if there is no will, request an independent administration without the probate of a will. They must each execute a document entitled “Waiver, Joinder and Designation.”

If there is no will, then they must also participate in a court proceeding known as an heirship determination, so that the court can judicially identify the heirs and their respective percentages of the estate.

Coming to an agreement, however, is only the first part. The court still has to hold a hearing, consider evidence and be convinced that independent administration is in the best interest of the estate. Unlike an independent administration that has been properly designated in a will, in an administration by agreement the judge may order the administrator to post a bond.

All of that is on top of the usual procedures to probate a will.

Is it easier just to have a good Texas attorney draft your will? Of course. Spread the word to the multitude, will you?

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.