Independent Administration The plain vanilla probate case

Independent Administration The “plain vanilla” probate case

What is an Independent Administration? n Been used in Texas since 1840’s! n Administration without judicial supervision n EC 401 & 402 n 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, 81 st Leg. , R. S. , Ch. 680 (H. B. 2502), Sec. 1, eff. January 1, 2014.

File – with or without money? If NOT e-filing yet…. . and an Application is submitted with no fees. . . Can be filed “conditionally” – case law Jamar v. Patterson 1993 n No citation is issued, until filing fee is paid n And no hearing is held n The Court (Judge) has no jurisdiction and takes no action until citation is issued n Suggestion – put note of brightly colored paper in front of case file or scanned into computer to denote “conditionally filed” n See Appendix A for “conditionally filed” sample n NOTE – with e-filing, fees are paid when case is submitted

Pro Se applicants – Court policy – Appendix B

Venue n EC 33. 001 n County where decedent resided n If decedent did not have residence in Texas, then – n Where principal estate is located n Any county in which decedent’s nearest kin reside n 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 n Judge’s Probate Docket – EC 52. 001 n Claim Docket – EC 52. 002 n Probate Fee Book – EC 52. 003 n 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 n 1 name = 1 number n Never open another case on the same decedent!

Rule #2 n TRCP 99(a) – citation is issued only upon request, even when required in a proceeding.

Steps for an Independent Administration case…. n 1) A-B-C Search – before issuing a case number! A) Existing records for a case already filed B) Wills for Safekeeping n If there is one, make the court aware by submitting a letter to the Court (Judge) n Place a copy of the letter in the case file C) Drop-off Wills (sec. 252. 201 – old sec. 75) n If there is one, make the court aware by submitting a letter to the Court (Judge) n Place a copy of the letter in the case file

Steps…. n 2) Submission should include – n n n Civil Case Information Sheet – Appendix C Application for Independent Administration n 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) n Will copy is e-filed § Electronic file stamp in upper right corner § Keep the e-filed copy in your records n Original Will must arrive in clerk’s office within 3 business days per TRCP Rule 21 f § File stamp the original Will with the date it arrives

Electronic file stamp

Steps continued… n 3) Issue Citation(s) by request (rule 99 a TRCP) n n n 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! *If there is a codicil, that must be mentioned in the citation Appendix D-E-F-G-H-I n Return date on citations: n n Posting - 10 days Personal service – 10 days Service by publication – 10 days Service by mail – 20 days

Posting Chart… Appendix J

Service Chart… Appendix K

What to do if Will does not arrive within 3 days n Rule 21 f (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. n In Washington County, 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 21 f and the citation is not issued. )

Don’t be tempted…. .

Day of Hearing…. Judge takes testimony n Attorney presents Proof of Death n Judge signs Order n The Clerk or Judge gives the Oath to the Executor or Administrator EC 305. 003 n n n 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… n 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. – Appendix L n Qualification Date - If the Oath and/or Bond is filed days after the Order is signed, you use the date the last one of those is filed for your qualification date.

Letters Testamentary – Appendix L

Letters of Independent Administration – Appendix M

Filings after Order has been signed n Notice to Beneficiaries n n 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 n Inventory & Appraisement n EC 309. 051 Filed within 90 days of Order If filed more than 90 days after the Order, then charge $25 + $2 for judge’s signature LGC 118. 056 An Affidavit in Lieu of Inventory may be filed n n NOTE - Affidavit in Lieu of Inventory cannot be filed in Dependent Administrations EC 309. 051

Filings after Order has been signed n Claims EC 355. 002 n Send letter to personal representative or atty. - Appendix N n Contest or Adverse Action n n Civil case within a probate Must be decided before judge signs any order to declare Independent Administration

Claim Letter – Appendix N

File stamping n AG opinion JC-0323 n 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.

Funds held in Registry of the Court n Court Registry n If interest bearing account n n Keep 10% of the interest, upon disbursement If not interest bearing acct n LGC 117. 054 LGC 117. 055 Keep 5% of amount, not to exceed $50 upon disbursement

Closing an Independent Administration In Texas, there is no statute for re-opening an estate, therefore most Independent Administrations are “open” forever. However, if there is a Closing Report or Notice of Closing Estate of Affidavit to Close… File it Charge $2 for Judge’s sig. (if place for signature) Executor should provide Notice of Closing to each beneficiary unless waived; however they may request a posting If there is 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? n Administration of an estate WITH judicial supervision n The Court oversees every aspect of an estate’s administration. n Only those duties that the Judge finds needs to be handled in the estate will be granted to the Dependent Administrator.

Period for filing a Dependent Administration n EC 256. 003 n 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. n 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! n b) Letters Testamentary may not be issued if a Will is admitted to probate after the fourth anniversary of the testator’s death EC 253. 003(b)

How long is Dep. Admin. good for? n Can go on for as long as needed, but at least for 6 months to allow creditors time to present claims n If the case goes on for more than 1 year, then Annual Accountings need to be submitted n Some clerks track accountings, but there is no statutory requirement to do so. n (consider if your errors & omissions ins. covers this) n Many larger counties have Probate Auditors that track accountings.

When is a Dependent Administration proper? n If decedent dies without a Will, or n Executor named in the Will is deceased, or n Executor named in the Will declines to serve, or n No executor is named at all, or n Beneficiaries are unable to agree on an administrator n 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… n Do the A-B-C search n A) Existing probate case n B) Wills for safekeeping n C) Drop-off Wills n If case already exists, file in same case # n Assign case number if no existing case on the deceased

Steps - Dependent Administration case…. n Submission n Civil Case Information Sheet – Appendix C n Application for Dependent Administration n Last Will & Testament (if there is one) n n Original Will must arrive in clerk’s office within 3 business days per TRCP Rule 21 f File stamp the original Will with the date it arrives

Steps n Issue Citation(s) by request (rule 99 a TRCP) – Appendix D-E-F-G-H-I n Addressed to “any Sheriff or Constable within the State of Texas” Posting n Service on all heirs if Will is lost or not produced n Court may also require additional service (Take direction from atty, not up to the clerk to make judgment call on who will be served. ) n n Return date n n Posting – 10 days Personal service – 10 days Service by publication – 10 days Service by mail – 20 days

Posting Chart… - Appendix J

Service Chart… - Appendix K

Day of Hearing… n n n 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 n 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 n If Bond is required (and it usually is in a Dependent Administration) – n Can be cash – put it in your Bond Account n n 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 and disperse any bond money where the case has been closed Can be a “surety” – thru Insurance Agency n Clerk will get Surety Bond to put in the file

Letters – Appendix P

Filings after Order has been signed n Notice to Beneficiaries EC 308. 002 n Done by attorney (within 60 days) and proof is filed within 90 days n Beneficiaries may sign a Waiver of Notice and that is filed with the clerk n Inventory & Appraisement EC 309. 051 n Filed within 90 days of Order n If filed more than 90 days after the Order, then charge $25 + $2 for judge’s signature LGC 118. 056 n NOTE - Affidavit in Lieu of Inventory cannot be filed in Dependent Administrations EC 309. 051

Temporary Administration – EC 452 n n A “subset” of a Dependent Administration Specific, immediate need exists! Lasts for up to 180 days EC 452. 003 Appointment is interim until a Dependent or Independent Administrator is appointed n With only certain rights and powers EC 452. 101 n The judge must make certain findings n Issue citation after the hearing (by 3 rd day after) EC 452. 006 –Appendix R n Letters of Temporary Admin. should list the specific powers - EC 452. 005 – Appendix S n Claims are handled the same way as in any other administration n Closing – Temp. Admin. must file accounting EC 452. 151 n Post citation for final accounting – Appendix T n Court enters an Order to Close

Closing a Dependent Administration EC 362 n There should always be an Application to Close a Dependent Administration n May be combined with Filing a Final Account n Post citation to close – Appendix Q n NOTE: No Letters may be issued after an estate is closed! n NOTE: Don’t forget to release the cash bond, if one was presented.

Determination of Heirship Court is asked to determine the heirs of the decedent and who will inherit.

Determination of Heirship… n EC 202 n Usually when there is no Will n The Court determines heirs n Determination of Heirship is usually granted before Independent or Dependent Administrator is appointed but may come at any time during proceedings. n Should be presented within 4 years of testator’s death EC 202. 006

Steps…. n Application to Determine Heirship is filed n Space may be provided in the Application for Appointment of an Attorney Ad Litem n Issue Posting and Citation by Publication and any others by personal service that are requested EC 202. 051 – 202. 055 Appendix U-V n Service may be waived by filing a Waiver EC 202. 056

Steps…. n Day of Hearing n Judge takes testimony n There may or may not be a Judgment Declaring Heirship or Judgment declaring may be combined with an Order for Administration n Filings may end with Determination of Heirship or go into an Administration (Independent or Dependent) n Once administration is ordered, Letters may be issued

Sale of Real Or Personal Property n EC 356. 051 - 356. 655 n Application is made n Issue citation to all interested parties by posting – EC 356. 253 - Appendix W n Clerk issues only upon request – TRCP 99 a

Temporary Restraining Order - TRO n Preserves the status quo and “freezes” everything until a hearing can be held n Petition for TRO is submitted n Judge grants n Issue for personal service n Attach petition to the TRO n Appendix X

Removal of Executor or Administrator n EC 404. 003 – 404. 0036 n May be removed with or without notice n If service is requested, serve – n Executor/Administrator n Attorney n Bonding company (if there is one) n Serve by request! – TRCP 99 a Appendix Y

Amended applications n Amended application or a new application to “change” a probate case – n n n From Muniment of Title to Appl for Letters Test. From Administration to Appl. for Letters Test. From Open Safety Dep. Box to Appl. For …. . Or Mun. Same name – same number Post – to give public the right to respond Fees – $40 Clerk fee, $30 efile fee, $20 Court initiated guard. fee, $10 Indigent fee, $2 Judge’s signature fee, and posting fee

Subpoena n Issued upon request n Appendix Z - AA

Resources n Estates Code n Local Government Code n Rules of Civil Procedure n Supreme Court of Texas website n http: //www. txcourts. gov/supreme n Office of Court Administration website n http: //www. txcourts. gov/