DETERMINATION OF Court is asked to determine the heirs of the - - PowerPoint PPT Presentation
DETERMINATION OF Court is asked to determine the heirs of the decedent and who HEIRSHIP will inherit. Its all relative. DETERMINATION OF HEIRSHIP EC 202 Usually when there is no Will The Court determines heirs Determination of
Court is asked to determine the heirs of the decedent and who will inherit. It’s all “relative”.
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
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
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
EC 356.051 - 356.655 Application is made Issue citation to all interested parties by posting – EC 356.253
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
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;
(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)
The probate court, on the court's own motion, may remove an independent executor appointed under this subtitle after providing 30 days' written notice
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
(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
(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
(3) the independent executor becomes an incapacitated person,
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)
Issued upon request
I can do it!
Been used in Texas since 1840’s! Administration without judicial supervision EC 301-402 Quick, easy, less expensive way to probate
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,
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
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.
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
1 decedent = 1 case Never open another case on the same decedent!
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
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
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.)
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
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
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
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 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
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.
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.
EC Sec. 306.006. REPLACEMENT AND OTHER ADDITIONAL
been destroyed or lost, the clerk shall issue other letters to replace the original letters, which have the same effect as the
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
indicating that the letters have been issued, is sufficient evidence of: (1) the appointment and qualification
the personal representative of an estate; and (2) the date of qualification.
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
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
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.
Filing new Probate Case (Basic Fees) $ 40.00 00 Cler erk LGC LGC 118. 8.052 52 (2)( 2)(A)(i) $ 4.00 00 Citat ation LGC LGC 118. 8.052 52(3)(A) & 118. 8.059 59 $ 2.00 00 Judge dge Signat gnatur ure LGC LGC 118. 8.101 01 (except pt 8,10& 10&13 13) $ 5.00 00 Judi dicial al Educ ucation
LGC LGC 118. 8.052( 52(A)(vi) & 118. 8.06 064 $ 5.00 00 Records ds Ma Mana nagem ement nt LGC LGC 118. 8.052( 52(3)(G) & 118. 8.0645 645 $ 5.00 00 Secur urity Fee e LGC LGC 291. 1.008( 08(a) (set set by CC) $ 40.00 00 Judi dicial al Fund nd Supp pplem emen ent GC GC 51.702( 02(a) & 51.70 703( 3(a) $ 42.00 00 Judi dicial al Suppo port LGC LGC 133. 3.154 54 $ 10.00 00 Civil Le Legal gal Services es for Indigen gent LGC LGC 133. 3.153 53(a)(1) 1) $ 5.00 00 Appel pellat ate e Judi dicial System GC GC 22.2081 081(b) b) (ck stat atut ute e for your co., set by CC)) )) $ 10.00 00 Cour urt Recor
s Preser eservat ation GC GC 51.708( 08(a) $ 20.00 00 Suppl plem ement ntal Gu Guar ardi dians nshi hip Fee e LGC LGC 118. 8.052 52 (2)( 2)(E) $ 30.00 00 State e Elec ectron
Filing g GC GC 51.851( 51(b) $ 15.00 00 Alter erna nate Disp spute e Reso solut ution
CRPC PC15 152. 2.004( 04(a) $ 75.00 00 Post sting ng LGC LGC 118. 8.131 31 (set set by Comm. Court) urt) $ 35.00 00 La Law w Li Library LGC LGC 323. 3.023 23(a) (se set by Comm. Court) $ 5.00 00 Judi dicial al & Cour urt Pers.
aini ning ng GC GC §101. 101.08 08111 111 $348. 48.00 00 Total al
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
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
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
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)
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
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
Also known as the “Mother May I” administration of an estate.
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.
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
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.
Can go on for as long as needed, but at least for 6 months to allow creditors time to present claims Additionally:
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: ……
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.
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
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
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
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)
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
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
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)
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
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.
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/