Breakout 1: Probate: Where There’s a “Will”…There’s a Way (sort of) 2019 County and District Tuesday, June 25, 2019 Clerks’ 1–2:30 p.m Association of Texas Annual Education Conference Hon. Beth Rothermel Washington County Clerk June 23-27, 2019 The Woodlands Waterway Hon. Julie Smith Marriott Hotel & Convention Center Potter County Clerk Piece of the Puzzle, Part of the Whole Learn some recommended “tips and tools” that can aid with probate proceedings. Join us as we explain steps to probate proceedings that will help your office and the court navigate the probate process.
Hon. Beth Rothermel, Washington County Clerk Beth Rothermel has been County Clerk of Washington County since 1995, was born and raised in Washington County. She graduated from Brenham High School, Blinn College and Texas A&M University. A passionate historian, she has embarked on projects involving conservation of old books and computerization of most records in the County Clerk's office for more efficient research. Rothermel has served on many committees and in all offices of the County and District Clerks' Association of Texas (CDCAT), including a term as president in 2005- 2006. She became a Master Registrar in 2004. She was a founding board member of the Risk Management Board of the Texas Association of Counties, was on the advisory committee to the Texas State Library and Archives, Office of Court Administration Judicial Data Workgroup, and has served as a mentor to other clerks. Rothermel also served on the National Association of Counties Telecommunications Committee for several years. Hon. Julie Smith, Potter County Clerk Julie Smith took office as Potter County clerk in 2007. In office, she has served on various boards and committees within Potter County. She has also served on various committees within CDCAT, currently on the Probate Academy Committee and as director in Region 1.
Independent Administration I I can can do do it! it! What is an Independent Administration? ■ Been used in Texas since 1840’s! ■ Administration without judicial supervision ■ EC 301-402 ■ Quick and easy to probate 1
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. Venue ■ EC 33.001 * ■ County where decedent resided based on domicile or fixed place of residence ■ If decedent did not have residence in Texas, then – ■ Where principal estate is located at time of death ■ 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. 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 make notes in Case Management System to denote “conditionally filed” 2
Pro Se applicants – Court policy 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 3
Rule #1 ■ 1 decedent = 1 case ■ Never open another case on the same decedent! Steps for an Independent Administration case…. ■ 1) Search for a Will before issuing a case number. A) A) Existing records for a case already filed B) 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) C) ■ 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 continued…. ■ 2) 2) Subm Submis issi sion should include – should include – – Application for Independent Administration – Last Will and Testament (if there is one) Copy of Will can be e-Filed but not required 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 4
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.) – Notify Judge that the Will has not been filed and place a bright colored page in the folder where the Will should be. 5
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 6
Day of Hearing…. – Judge takes testimony – Attorney presents Proof of Death aka Proof of Death and Other Facts – Judge signs Order – The Clerk or Judge gives the Oath to the Executor or Administrator EC 305.003 ■ If the Oath is not presented on day of Court, it should be completed and filed within 21 days of the Order 7
Steps continued… ■ Once the Order is signed, Oath taken and Bond given (if a bond is ordered) – Letters Testamentary or Letters of Independent Administration can be issued. – Qualification Date - If the Oath and/or Bond is filed days after the Order is signed, use the date the last one of those is filed for your qualification date. Issuing Letters ■ Issue letters once the applicant has qualified via oath and/or bond. ■ Issue ORIGINAL letters only! ■ EC Sec. 306.004. ISSUANCE OF ORIGI ORIGINAL LETTERS. When an executor or administrator has qualified in the manner required by law, the clerk of the court granting the letters testamentary or of administration shall promptly issue and deliver the letters to the executor or administrator. If more than one person qualifies as executor or administrator, the clerk shall issue the letters to each person who qualifies. Form and Content of Letters ■ EC Sec. 306.005. FORM AND CONTENT OF LETTERS. Letters testamentary or of administration shall be in the form of a certificate of the clerk of the court granting the letters, attested by the court's seal, that states: ■ (1) the executor or administrator, as applicable, has qualified as executor or administrator in the manner required by law; ■ (2) the date of the qualification; and ■ (3) the name of the decedent. 8
Replacement & Effect of Letters ■ EC Sec. 306.006. REPLACEMENT AND OTHER ADDITIONAL LETTERS. When letters testamentary or of administration have been destroyed or lost, the clerk shall issue other letters to replace the original letters, which have the same effect as the original letters. The clerk shall also issue any number of letters when requested by the person or persons who hold the letters. ■ EC Sec. 306.007. EFFECT OF LETTERS OR CERTIFICATE. Letters testamentary or of administration or a certificate of the clerk of the court that granted the letters, under the court's seal, indicating that the letters have been issued, is sufficient evidence of: ■ (1) the appointment and qualification of the personal representative of an estate; and ■ (2) the date of qualification. Letters Testamentary Letters of Independent Administration 9
Now What? Filings after Order has been signed ■ No Noti tice to Bene nefi ficiaries EC 308 308.002 & 308 308.004 – Done by attorney/personal representative (within 60 days) and proof is filed within 90 days – Beneficiaries may sign a Waiver of Notice and that is filed with the clerk (This may also be filed with other documents (i.e., inventory or request for extension) provided they are timely filed. ■ Invent ventor ory & Apprais aisement nt E EC 3 309.0 .051 – Filed within 90 days after the date the personal representative qualifies (bond/oath). ■ If filed after the 90th day, charges of $25 + $2 for judge’s signature apply LGC 118.052(2)(B)(i), 118.056 & 118.101(11) An Affidavit in Lieu of Inventory may be filed (no charge) EC 309.056 – NOTE - Affidavit in Lieu of Inventory cannot be filed in Dependent Administrations EC 309.051 Independent A Independent Administration/L ministration/Letters Testamenta stamentary in in a a Nutsh tshell ll 10
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