Independent and Dependent Probate

Probate Case Type Categories(based upon OCA reporting)

Independent Administration(Administration without Judicial Supervision)

Letters Testamentary (EC §401.001)

Independent Administration (EC §401.002(a) & EC §401.003(b))

Independent Administration with will annexed (EC §401.002(b))

Appointment of Independent Administration with Determination of Heirship

Dependent Administration (Administration with judicial supervision)

Dependent Administration

Dependent Administration with Will Annexed

Probate Will with Dependent Executor

Appointment of Dependent Administrator with Determination

of Heirship

Appointment of Temporary Administrator

All other Estate Proceedings

Muniment of Title (EC Chp. 257)

Sale of Minor’s Property w/o guardianship (EC Chp. 1351)

Payment of Claims w/o administration for Minor or Incapacitated Person (EC Chp. 1355)

Determination of Heirship w/o administration (EC Chp. 202)

Small Estates (EC Chp. 205)

Complaint to Produce Will (EC Chp. 252.201)

Probate of Foreign Will (EC Chp. 501-502)

Order to Examine Safe Deposit Box (EC Chp. 151)

Emergency Intervention (EC Chp. 152)

Commonly Filed Proceedings Independent Administration

Letters Testamentary (EC §401.001)

Independent Administration (EC §401.002(a) & EC §401.003(b))

Independent Administration with will annexed (EC §401.002(b))

Appointment of Independent Administration with Determinationof Heirship

Dependent Administration

Dependent Administration

Dependent Administration with Will Annexed

Probate Will with Dependent Executor

Appointment of Dependent Administrator with Determination ofHeirship

Appointment of Temporary Administrator

Commonly Filed Proceedings

All Other Estate Proceedings

Muniment of Title (EC Chp. 257)

Small Estates (EC Chp. 205)

Venue

County where decedent resided based on domicile or

fixed place of residence

If decedent did not have residence in Texas, then –

In the County 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(EC §33.001*)

* The clerk should take the filing and let the court make a

determination of proper venue.

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.

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

Quick Rules upon Case Acceptance

Rule #1 – One decedent, one case (EC §52.052)

Search for a Will or existing case before issuing a case

number

Wills for Safekeeping (EC §252.001)

Drop-off Wills (EC §252.201)

If found, make court aware by submitting a letter to the

Court (Judge)

Place a copy of the letter in the case file

Independent Administration Initial Case Filing

Application for Independent Administration

Last Will and Testament

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….

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.

Issue Citations

EC §51.001-51.056

Styled same as application

Addressed to “any Sheriff or Constable within the State ofTexas” (probate & guardianship cannot be served by PrivateProcess Server in the State of Texas – must be by Sheriff orConstable) EC §51.051(b)(1)

*If there is a codicil, it must be mentioned in the citation

Citation Return Date

Return date on citations:

Posting - 10 days

Personal service – 10 days

Service by publication – 10 days (if no newspaper, then by posting)Rule 116(b) TRCP

(b) Where to Publish. (1) Generally. Except as otherwise provided in (2),the citation must be served by publication in a newspaper under (c) andon the Public Information Internet Website under (d). (2) WhenNewspaper Publication Not Required. The citation need not bepublished in a newspaper if: (A) the party requesting citation files aStatement of Inability to Afford Payment of Court Costs under Rule 145;(B) the total cost of the required publication exceeds $200 each weekor an amount set by the Supreme Court, whichever is greater; or (C) thecounty in which the publication is required does not have anynewspaper published, printed, or generally circulated in the county

Service by mail – 20 days (date of service is date of mailing)

Some clerk’s established a filing cut off time of 3:00pm eachThursday

Posting & Service Chart

Posting & Service Chart

Hearing Day

Judge takes testimony

Attorney presents Proof of Death aka Proof of Death andOther Facts

Judge signs Order

The Clerk or Judge gives the Oath to the Executor orAdministrator EC 21305.003

If the Oath is not presented on day of Court, itshould be completed and filed within 21 days ofthe Order

Do not issues Letters untilExecutor/Administrator has complied

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 not filed

on the same day the Order is signed, use the date the

oath or bond is filed as your qualification date, which

ever is later.

Issuing Original Letters

Issue letters once the applicant has qualified via oath and/or

bond.

Issue ORIGINAL letters only!

EC §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.

Joint Executors or Administrators

EC §307.002. JOINT EXECUTORS OR ADMINISTRATORS. (a) Except

as provided by Subsection (b), if there is more than one executor or

administrator of an estate at the same time, the acts of one of the

executors or administrators in that capacity are valid as if all the

executors or administrators had acted jointly. If one of the executors

or administrators dies, resigns, or is removed, a co-executor or co-

administrator of the estate shall proceed with the administration as if

the death, resignation, or removal had not occurred.

(b) If there is more than one executor or administrator of an estate at

the same time, all of the qualified executors or administrators who are

acting in that capacity must join in the conveyance of real estate

unless the court, after due hearing, authorizes fewer than all to act.

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 §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 §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

Required 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 with Clerk 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 orrequest for extension) provided they are timely filed.

Inventory & Appraisement EC §309.051– 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’ssignature apply

• LGC §118.052(2)(B)(i), §118.056 & §118.101(11)• An Affidavit in Lieu of Inventory may be filed within the time

prescribed by law (no charge) EC §309.056(b). The Court cangrant an extension EC §309.056(e).

– NOTE - Affidavit in Lieu of Inventory cannot be filed in DependentAdministrations EC §309.051

Additional Filings after Order

Claims EC §355.002

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

Send letter to personal representative or attorney (sample

included)

Personal representative should file with the clerk a

memorandum allowing or rejecting the claim.

The Court can act on the claim 10 days after the claim is

allowed. (EC §355.055)

Independent Administration/Letters Testamentary in a Nutshell

Probate Filing Fees – Show me the Money!

■ 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)

$ 90.00 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

$365.00 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 fees 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

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.

Closing consists of the following:

Closing Report (EC §405.005) An independent executor may file a

closing report verified by affidavit. Closing Report automatically

releases surety on bond if one was posted (EC §405.007)

Notice of Closing Estate (EC §405.006) Instead of filing a closing

report under EC §405.005, an independent executor may file a

notice of closing estate verified by affidavit. This does not

automatically release surety on bond.

Upon the filing of a Closing Report or Notice of Closing Estate, if no

objection filed within 30 days, the case is considered closed. If an

objection has been filed the case may be closed after objection has

been disposed or the court signs an order closing the estate (EC

§405.007)

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 need to be handled in

the estate will be granted to the Dependent Administrator.

An administrator is the one appointed by the court to complete

tasks when there is no will or no executor named in the will.

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.

Dependent Administration

Period for Filing (EC §256.003)

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

–b) Letters Testamentary may not be issued if a Will isadmitted to probate after the fourth anniversary ofthe testator’s death, unless it is shown that theapplication was filed on or before the 4th anniversaryof testator’s death.

Steps for filing

Do the A-B-C search

A) Search for existing probate case

B) Wills for safekeeping

C) Drop-off Wills

If case already exists, file in the same case #

One decedent = one case

Assign new case number if case does not exist on the

deceased

Steps continued

■ Submission

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 continued

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 makejudgment 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

Hearing Day

Judge takes testimony

Attorney presents Proof of Death

Judge signs Order

The Clerk or Judge gives the Oath to the Executor orAdministrator EC 305.003

If the Oath is not presented in Court, it should be completedand filed within 21 days of the Order

Bond - if Judge orders one, must be filed within 21 days of theOrder EC 305.004 (there is usually a bond in DependentAdministrations)

Bond requirements If Bond is required (common in a Dependent Administration) – the amount

is set the day of court but must be filed within 21 days of the Order EC §305.004

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 or disposed

Get an order from the Judge to release funds back to the person who placed the money on deposit

Can be a “surety” – thru Insurance Agency

Clerk will receive Surety Bond for filing

Surety Bond goes to Judge for approval and returned to Clerk for filing

If bond required – no letters should be issued until Administrator has complied with the Oath and Bond requirements, including bond approval by Judge.

Letters of Administration

Filings after Order Signed

Notice to Beneficiaries EC §308.002

Done by attorney (within 60 days) and proof is filed within90 days

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

Inventory & Appraisement EC §309.051

Filed within 90 days after the date the personalrepresentative qualifies (bond/oath).

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

LGC §118.052(2)(B)(i), §118.056 & §118.101(11)

NOTE - Affidavit in Lieu of Inventory cannot be filed in DependentAdministrations EC §309.051

Closing a Dependent Administration

Verified Account for Final Settlement filed EC §362.003

Contents of Account EC §362.004

Citation/Notice issued upon Presentation of Final Account EC

§362.005

Hearing set by Judge for Final Settlement

Important!

No Letters may be issued after an estate is closed!

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

Temporary Administration

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 isappointed

With only certain rights and powers EC §452.101

The Judge must make certain findings

Issue Notice after the hearing (by 3rd day after) EC §452.006

Letters of Temporary Admin. should list the specific powers (state exactlanguage 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 if applicable

Other Filings that can be filedduring pendency of case.

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 without NoticeEC 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

Removal without notice

(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 Notice

§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 §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)

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/