DETERMINATION OF HEIRSHIP

Court is asked to

determine the heirs of

the decedent and who

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 ADMINISTRATOREC 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 ADMINISTRATOREC 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 NOTICESec. 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 ADMINISTRATION

I can do it!

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

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

Issuing letters once the applicant has qualified via oath and/or bond.

Issue ORIGINAL letters only!

EC Sec. 306.004. ISSUANCE OF 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.

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. Letterstestamentary or of administration or a certificate of the clerkof the court that granted the letters, under the court's seal,indicating that the letters have been issued, is sufficientevidence of:

(1) the appointment and qualification of the personalrepresentative of an estate; and

(2) the date of qualification.

LETTERS TESTAMENTARY

LETTERS OF INDEPENDENT ADMINISTRATION

NOW WHAT?FILINGS AFTER ORDER HAS BEEN SIGNED

Notice to Beneficiaries EC 308.002 & 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).

Inventory & Appraisement EC 309.051 Filed within 90 days after the date the personal representative qualifies (bond/oath).

If filed after the 90th day then charge $25 + $2 for judge’s signature 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

FILINGS AFTER ORDER HAS BEEN SIGNED

Claims EC 355.002

$12.00 Fee ($10.00 for claim & $2.00 for Judge’s signature)

Send letter to personal representative or attorney

Contest or Adverse Action EC 118.057

Civil case within a probate

Must be decided before judge signs any order to declare Independent Administration

CLAIM LETTER

FILE STAMPING

AG opinion JC-0323 SUMMARY

While a county clerk is not expressly required by statute to file stamp the date and time an instrument

arrives in the clerk’s office for filing upon receiving and accepting the instrument, the county clerk must

devise some method for immediately and accurately noting that date and time. Just as the clerk must

develop a method for noting the date and time a particular instrument is delivered in person, so must the

clerk develop a method for noting the date and time of delivery of an instrument that arrives in the mail.

PROBATE FEES – SHOW ME THE $$$$$

Filing new Probate Case (Basic Fees)

$ 40.00 Clerk LGC 118.052 (2)(A)(i)

$ 4.00 Citation LGC 118.052(3)(A) & 118.059

$ 2.00 Judge Signature LGC 118.101 (except 8,10&13)

$ 5.00 Judicial Education LGC 118.052(A)(vi) & 118.064

$ 5.00 Records Management LGC 118.052(3)(G) & 118.0645

$ 5.00 Security Fee LGC 291.008(a) (set by CC)

$ 40.00 Judicial Fund Supplement GC 51.702(a) & 51.703(a)

$ 42.00 Judicial Support LGC 133.154

$ 10.00 Civil Legal Services for Indigent LGC 133.153(a)(1)

$ 5.00 Appellate Judicial System GC 22.2081(b) (ck statute for your co., set by CC))

$ 10.00 Court Records Preservation GC 51.708(a)

$ 20.00 Supplemental Guardianship Fee LGC 118.052 (2)(E)

$ 30.00 State Electronic E-Filing GC 51.851(b)

$ 15.00 Alternate Dispute Resolution CRPC152.004(a)

$ 75.00 Posting LGC 118.131 (set by Comm. Court)

$ 35.00 Law Library LGC 323.023(a) (set by Comm. Court)

$ 5.00 Judicial & Court Pers. Training GC §101.08111

$348.00 Total

FEES CONTINUED…

Variations on fees may include: Posting Fee (Sheriff Fee) LGC 118.131 set by CC

Law Library Fees LGC 323.023

Court Reporter GC 51.601(a)

Alternative Dispute Resolution CPRC 152.004(a)

NOTE: No fee if decedent died in combat zone while in active service or if decedent died while on active duty in law enforcement or as a firefighter EC 53.053 – 53.054

FEES CONTINUED…

Filing Inventory after 90 days: $27.00

- $25.00 – Clerk fees – LGC 118.052(2)(B)(i) & 118.056(d)

- $ 2.00 – Judge signature fee – LGC 118.101

Claims $ 10.00 each LGC 118.052(2)(D) & 118.058

Letters $ 2.00 each LGC 118.052(3)(D) & 118.061

Jury Fee $40.00 GC 51.604(a)(c) & RCP Rule 216

Service by Cert. Mail: Same as by Sheriff/Constable LGC 118.052(3)(F)

Judge’s fee for signature on orders $2.00 LGC 118.101

FEE CONTINUED…

Adverse Action Fees $115.00*$40.00Clerk fee LGC §118.052 (2)(c)$ 5.00Courthouse Security LGC §291.008(a) set by CC$10.00Legal Services to the Indigent LGC §133.153 (a)(1)$ 5.00Records Management LGC §118.052(3)(G) & 118.0645$ 20.00Supplemental Court Guard. LGC §118.052(2)(E)$ 30.00 State Electronic Filing GC §51.851$ 5.00 Judicial Court & Personnel GC §101.08111

*add issuance & service fees as needed

Sale of Real Property $27.00*$25.00 Clerk fee LGC §118.052(2)(B)(v)$ 2.00 Judge’s signature fee LGC §118.101

*add issuance & service fees as needed

FEES CONTINUED…

Petition for Order Authorizing Deposition

When a witness is unable to come to the hearing, interrogatories (questions) are sent to them to answer; they answer in front of a notary and return these answers sealed in an envelope to the clerk; envelope is opened in court)

$ 4.00 – Clerk fee (issuance) LGC §118.052(3)(A) $ 2.00 – Judge’s signature LGC §118.101$75.00 – Posting (varies by Co.) LGC §118.131 (set by Comm. Ct.)

$81.00

Copies (per pg.) $1.00 LGC §118.052(3)(C)

To certify $5.00 LGC §118.052(3)(B)

FUNDS HELD IN REGISTRY OF THE COURT

Court Registry

If interest bearing account LGC 117.054

Keep 10% of the interest, upon disbursement

If non interest bearing acct LGC 117.055

Keep 5% of amount, not to exceed $50 upon disbursement

TO BE CONTINUED!!!!!

CLOSING AN INDEPENDENT ADMINISTRATION

In Texas, there is no statute for re-opening an estate, therefore most Independent Administrations are “open” forever.

Leaving the case “open” allows for the issuance of Original Letters.

Case Closed = Issuing a “Certificate as to Letters” (stating that they once qualified as Executor/Administrator)

However, if a Closing Report or Notice of Closing Estate of Affidavit to Close is presented-

File it

Collect $2 for Judge’s signature (if needed)

Executor should provide Notice of Closing to each beneficiary unless waived; however they may request a posting

If no objection filed within 30 days, the case is considered closed

DEPENDENT ADMINISTRATION Also known as the

“Mother May I”

administration of an

estate.

WHAT IS A DEPENDENT ADMINISTRATION?Administration of an estate WITH judicial supervision

The Court oversees every aspect of an estate’s administration.

Only those duties that the Judge finds needs to be handled in

the estate will be granted to the Dependent Administrator.

DEPENDENT ADMINISTRATION

Period for Filing (EC 256.003)

a) A will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death. If an Application is presented more than 4 years after death, the clerk should file it

and let the court decide to hear or not!

b) Letters Testamentary may not be issued if a Will is admitted to probate after the fourth anniversary of the testator’s death.

HOW LONG CAN THIS KEEP GOING ON?

Can go on for as long as needed, but at least for 6 months to allow creditors time to present claims

Additionally:

Sec. 404.001. ACCOUNTING. (a) At any time after the expiration of 15 months after the date that the court clerk first issues letters testamentary or of administration to any personal representative of an estate, any person interested in the estate may demand an accounting from the independent executor. The independent executor shall furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail: ……

WHEN IS A DEPENDENT ADMINISTRATION PROPER?

If decedent dies without a Will, or

Executor named in the Will is deceased, or

Executor named in the Will declines to serve, or

No executor is named at all, or

Beneficiaries are unable to agree on an administrator

NOTE: not up to the clerk to make a legal determination if a Dependent Administration is necessary…..take what is submitted.

STEPS FOR DEPENDENT ADMINISTRATION…

Do the A-B-C search

A) Existing probate case

B) Wills for safekeeping

C) Drop-off Wills

If case already exists, file in the same case #

Assign new case number if case does not exist on the deceased

STEPS - DEPENDENT ADMINISTRATION CASE….

Submission

Civil Case Information Sheet

Application for Dependent Administration

Last Will & Testament (if there is one)

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

STEPS

Issue Citation(s)

Addressed to “any Sheriff or Constable within the State of Texas” Posting

Service on all heirs if Will is lost or not produced

Court may also require additional service

(Take direction from attorney, not up to the clerk to make judgment call on who will be served.)

Return date

Posting – 10 days

Personal service – 10 days

Service by publication – 10 days

Service by mail – 20 days

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, must be filed within 21 days of the Order EC 305.004 (there is usually a bond in Dependent Administrations)

BOND

If Bond is required (and it usually is in a Dependent Administration) –

Can be cash – put it in your Bond/Registry Account

Keep a list of cases that you have money on

Keep a copy of paperwork setting bond in a file

Check this list at least once a year (or sooner) and disperse any bond money where the case has been closed

Get an order from the Judge to release

Can be a “surety” – thru Insurance Agency

Clerk will receive Surety Bond for filing

Bond then goes to Judge for approval and is then return it to the Clerk for filing

LETTERS

FILINGS AFTER ORDER HAS BEEN SIGNED

Notice to Beneficiaries EC 308.002 Done by attorney (within 60 days) and proof is filed within 90 days

Beneficiaries may sign a Waiver of Notice and that is filed with the clerk

Inventory & Appraisement EC 309.051

Filed within 90 days after the date the personal representative qualifies (bond/oath). If filed after the 90th day, then charge $25 + $2 for judge’s signature

LGC 118.052(2)(B)(i), 118.056 & 118.101(11) NOTE - Affidavit in Lieu of Inventory cannot be filed in Dependent Administrations EC 309.051

FEES IN CONTINUED…

Filing Annual Account: (if Dep. Admin. goes over 15 months) $27.00

$25.00 – Clerk fees LGC 118.052(2)(B)(iv)

$ 2.00 – Judge signature fee LGC 118.101

Filing Final Account: $106.00*

$25.00 – Clerk fees – LGC 118.052(2)(B)(iv)

$ 2.00 – Judge signature fee – LGC 118.101

$75.00 – Sheriff Fee - LGC 118.131 (set by CC)

$ 4.00 - Issuance LGC 118.052(3)(A)

TEMPORARY ADMINISTRATION – EC 452

A “subset” of a Dependent Administration

Specific, immediate need exists!

May not exceed180 days unless made permanent

EC 452.003

Appointment is interim until a Dependent or Independent Administrator is appointed With only certain rights and powers EC 452.101

The judge must make certain findings

Issue citation after the hearing (by 3rd day after) EC 452.006 Letters of Temporary Admin. should list the specific powers (state exact language from the Order) EC 452.005

Claims are handled the same way as in any other administration

Closing – Temp. Admin. must file accounting EC 452.151 & 452.152 Post citation for final accounting Court enters an Order to Close and release bond is applicable

CLOSING A DEPENDENT ADMINISTRATION EC 362

Application to Close a Dependent Administration

May be combined with Filing a Final Account

Post citation to close

NOTE: No Letters may be issued after an estate is closed!

NOTE: Don’t forget to release the cash bond, if one was presented.

RESOURCES

Estates Code

Local Government Code

Government Code

Rules of Civil Procedure

Supreme Court of Texas website

http://www.txcourts.gov/supreme

Office of Court Administration website

http://www.txcourts.gov/