Written by attorney James Brian Thomas

I'm an executor. How do I probate a will?

I didn't ask for this job.

Any well-drafted will includes the nomination of at least one independent executor, and typically provides for another person to fill those shoes if the first is unavailable or unwilling. When the attorney was preparing the will, they asked their client for the name of someone that they could trust to handle their affairs after their death. Most clients select a family member or trusted friend. On occasion, that relative or friend might not know that their name has been tossed out there until after the decedent's death.

Consider it a testament to your relationship with the decedent that they've entrusted you with their final wishes, and they've placed their confidence in you that you will carry out those wishes when they're gone. Administering an estate can sometimes be a thankless job, and you aren't required to take up the task. However, many individuals view taking this position as a way of honoring a deceased loved one and ensuring that the matter is handled appropriately.

Can I do this by myself?

No. While some Texas probate courts permit parties to probate a will without an attorney, the situations are very specific. No executor should go it alone.

Once appointed by the court, an executor owes legal obligations to a host of potential beneficiaries and creditors. In many cases, meeting those obligations is relatively simple. Failing to meet them could mean real trouble for the executor. Professional assistance is not required by the courts as a way of keeping attorneys employed. It's critical to navigating through unknown waters in the most efficient and responsible way possible.

I'm in charge, right?

It's important to understand that while the will nominates you as executor, it takes a court to appoint you to the position. Many people assume that their authority to act begins at the decedent's death. It doesn't.

In every case, there is a period of time between the decedent's death and the appointment of the executor by the court. That period may be as short as a few weeks, or may be quite long under the circumstances. During that time, there might be several things it seems appropriate to take care of. Property of the decedent should be secured, mail should be collected, and so on.

As the nominated executor, you should temper your concern with these items with the fact that you are not the executor until the court says so. Quite often, probate litigation is born at this stage because the nominated executor begins asserting authority immediately (e.G. Locking others out of the home, changing the mailing address, etc.). Move forward diligently, but do so responsibly.

What do I do?

Executors have three primary jobs, and potentially several things to do within each of those jobs.

  1. Gather the assets of the decedent. The executor is charged with identifying, collecting and safeguarding every asset of the decedent that passes pursuant to the will. An estate bank account might need to be opened, a loan might need to be collected, the lock on the front door might need to be re-keyed. The idea is that the executor should be aware of every asset and confident that every asset is safe.

  2. Resolve proper debts of the decedent. Creditors may present a claim that they are owed money from the estate. The executor's job (with an attorney's help) is to pay proper debts and deny payment for improper ones.

  3. Distribute the remainder. With every asset and debt accounted for, the executor's last job is to carry out the will's instructions when dividing and distributing the decedent's estate.

What happens while the executor is fulfilling those 3 jobs?

Following the hearing to appoint an executor, the individual must qualify by filing a written promise to do the job (your oath). Most wills waive the requirement of a bond for their executors, but one must be posted if required. At that point, the executor has "qualified," and is entitled to receive their letters testamentary.

General notice to creditors must be published and proof of publication filed with the court. Specific notice to certain creditors might also be appropriate. Notice of the will's admission to probate must be given to beneficiaries. An inventory must be compiled, filed and approved. In an independent administration in Texas, the approval of the inventory may very well mark the last time that the court is involved in the matter.

When distribution is made to the beneficiaries, releases should be obtained from each one. The executor can file those releases as proof that the beneficiary has received what they are entitled to.

These beneficiaries are killing me. What can I tell them?

Your attorney will guide you through the timing of accomplishing your tasks. Consider, however, that the beneficiaries might not have the same status information as you. To them, you're the one with all of the answers.

In an ideal situation, administrations are completely transparent and communication flows freely to anybody and everybody. Ideal situations are not common. Beneficiaries often have little patience. If you feel uncomfortable addressing their concerns, direct them to your attorney.

Maintain accurate and complete records of your activities as executor. Keep copies of bank statements. Beneficiaries have the right to request an accounting from you at specific times, and you should be prepared to provide them with one. Proceed honestly, keep your books in order and you'll do fine.

When is it over?

Most independent executors in Texas do not formally close the decedent's estate. Typically, an executor's job is done when the job is done. Utilizing releases signed by the beneficiaries can be an excellent method of showing that nothing is left to administer, and everyone can move forward to the next part of their lives.

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer