DETERMINATION OF Court is asked to determine the heirs of the decedent and who HEIRSHIP will inherit. It’s all “relative”.
DETERMINATION OF HEIRSHIP… EC 202 Usually when there is no Will The Court determines heirs Determination of Heirship is usually granted before Independent or Dependent Administrator is appointed but may come at any time during proceedings. Should be presented within 4 years of testator’s death EC 202.006
STEPS…. Application to Determine Heirship is filed Space may be provided in the Application for Appointment of an Attorney Ad Litem The Court shall appoint an attorney Ad Litem EC 202.009 Issue Posting and Citation by Publication and any others by personal service that are requested EC 202.051 – 202.055 Service may be waived by certain distributees by filing a Waiver EC 202.056
STEPS…. Day of Hearing Judge takes testimony There may or may not be a Judgment Declaring Heirship or Judgment declaring may be combined with an Order for Administration Filings may end with Determination of Heirship or go into an Administration (Independent or Dependent) Once administration is ordered, Letters may be issued
SALE OF REAL OR PERSONAL PROPERTY EC 356.051 - 356.655 Application is made Issue citation to all interested parties by posting – EC 356.253
TEMPORARY RESTRAINING ORDER - TRO Preserves the status quo and “freezes” everything until a hearing can be held Petition for TRO is submitted Judge grants Issue for personal service Attach petition to the TRO
REMOVAL OF EXECUTOR OR ADMINISTRATOR EC 404.003 – 404.0036 EC 404.003REMOVAL OF INDEPENDENT EXECUTOR WITHOUT NOTICE. The probate court, on the court's own motion or on the motion of any interested person, and without notice, may remove an independent executor appointed under this subtitle when: (1) the independent executor cannot be served with notice or other processes because: (A) the independent executor's whereabouts are unknown; (B) the independent executor is eluding service; or (C) the independent executor is a nonresident of this state without a designated resident agent; or
REMOVAL OF EXECUTOR OR ADMINISTRATOR EC 404.003 – 404.0036 (CONT.) (2) sufficient grounds appear to support a belief that the independent executor has misapplied or embezzled, or is about to misapply or embezzle, all or part of the property committed to the independent executor's care. If service is requested, serve – Executor/Administrator Attorney Bonding company (if there is one)
REMOVAL WITH NOTICE Sec. 404.0035. REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE. (a) The probate court, on the court's own motion, may remove an independent executor appointed under this subtitle after providing 30 days' written notice of the court's intention to the independent executor, requiring answering at a time and place set in the notice, by certified mail, return receipt requested, to the independent executor's last known address and to the last known address of the independent executor's attorney of record, if the independent executor: (1) neglects to qualify in the manner and time required by law; (2) fails to return, before the 91st day after the date the independent executor qualifies, either an inventory of the estate property and a list of claims that have come to the independent executor's knowledge or an affidavit in lieu of the inventory, appraisement, and list of claims, unless that deadline is extended by court order; or
REMOVAL WITH NOTICE (3) fails to timely file the affidavit or certificate required by Section 308.004. (b) The probate court, on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place set in the notice, may remove an independent executor when: (1) the independent executor fails to make an accounting which is required by law to be made; (2) the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor's duties;
REMOVAL WITH NOTICE (3) the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor's fiduciary duties; or (4) the independent executor becomes incapable of properly performing the independent executor's fiduciary duties due to a material conflict of interest. If service requested – serve: Executor/Administrator Attorney Bonding Company (if any)
YOU’RE OUT!!!!
SUBPOENA Issued upon request
INDEPENDENT I can do it! ADMINISTRATION
WHAT IS AN INDEPENDENT ADMINISTRATION? Been used in Texas since 1840’s! Administration without judicial supervision EC 301-402 Quick, easy, less expensive way to probate
PROBATE IS A CIVIL MATTER – EC 53.051 Sec. 53.051 . APPLICABILITY OF CERTAIN LAWS. A law regulating costs in ordinary civil cases applies to a probate matter when not expressly provided for in this title. Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
PRO SE APPLICANTS –
PRO SE APPLICANTS -
COURT POLICY
FILE – WITH OR WITHOUT MONEY? Can be filed “conditionally” – case law Jamar v. Patterson 1993 No citation is issued, until filing fee is paid And no hearing is held The Court (Judge) has no jurisdiction and takes no action until citation is issued Suggestion – put note of brightly colored paper in front of case file or scanned into computer to denote “conditionally filed” NOTE – with e-filing, fees are paid when case is submitted
VENUE EC 33.001 County where decedent resided If decedent did not have residence in Texas, then – Where principal estate is located Any county in which decedent’s nearest kin reside If no next of kin in Texas, then in the county in which decedent’s principal estate was located * The clerk should take the filing and let the court make a determination of proper venue.
RECORDS TO BE KEPT - Judge’s Probate Docket – EC 52.001 Claim Docket – EC 52.002 Probate Fee Book – EC 52.003 NOTE: the above may be kept on computer file, microfilm, digitized optical image or another similar form of data compilation EC 52.004
RULE #1 1 decedent = 1 case Never open another case on the same decedent!
STEPS FOR AN INDEPENDENT ADMINISTRATION CASE…. 1) A-B-C Search – before issuing a case number! A) Existing records for a case already filed B) Wills for Safekeeping (EC §252.001) If there is one, make the court aware by submitting a letter to the Court (Judge) Place a copy of the letter in the case file C) Drop-off Wills (EC §252.201) If there is one, make the court aware by submitting a letter to the Court (Judge) Place a copy of the letter in the case file
STEPS…. 2) Submission should include – Civil Case Information Sheet Application for Independent Administration The first page will be “file stamped” electronically with date and time in upper right hand corner Last Will and Testament (if there is one) Will copy is e-filed (not required) Electronic file stamp in upper right corner Keep the e-filed copy in your records Original Will must arrive in clerk’s office within 3 business days per TRCP Rule 21f File stamp the original Will with the date it arrives
WHERE THERE’S A WILL… THERE’S A WAIT !!!! 3 2 1
WHAT DO I DO IF WILL DOES NOT ARRIVE WITHIN 3 DAYS? Rule 21f (12) – When a party electronically files an application to probate a document as an original Will, the original Will must be filed with the clerk within 3 business days after the application is filed. In some counties, the citation is issued when the original Will arrives. (If the original Will does not arrive within 3 business days, the filer is considered not to be in compliance with Rule 21f and the citation is not issued.)
DON’T BE TEMPTED…..
ELECTRONIC FILE STAMP
STEPS CONTINUED… 3) Issue Citation(s) EC 51.001-51.056 Styled same as application Addressed to “any Sheriff or Constable within the State of Texas” (probate & guardianship cannot be served by Private Process Server in the State of Texas – must be by Sheriff or Constable!) EC §51.051(b)(1) * If there is a codicil, it must be mentioned in the citation Return date on citations: Posting - 10 days Personal service – 10 days Service by publication – 10 days (if no newspaper, then by posting) Service by mail – 20 days (date of service is date of mailing) Some clerk’s established a filing cut off time of 3:00pm each Thursday
POSTING CHART
SERVICE CHART
DAY OF HEARING…. Judge takes testimony Attorney presents Proof of Death Judge signs Order The Clerk or Judge gives the Oath to the Executor or Administrator EC 305.003 If the Oath is not presented in Court, it should be completed and filed within 21 days of the Order Bond - if Judge orders one, is usually presented the day of court, but if not, must be filed within 21 days of the Order EC 305.004
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