Independent Administration I c I can do i it! What is an - PowerPoint PPT Presentation

Independent Administration I c I can do i 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

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”

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

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) 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) 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) Submission shou hould i incl clude – – 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

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.

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 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

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 ORIG IGIN INAL 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. 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

Now What? Filings after Order has been signed ■ Notice ce to Bene nefici ciaries 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) provided they are timely filed. ■ Inventory y & Apprai aisement EC C 309.0 9.051 – 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

Ind Indep epend ndent nt Adm dminis inistrat ation/Le ion/Letters Testamentary in in a N a Nutshell

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

File stamping ■ AG opinion JC-0323 – SUMMA MMARY 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.