If you have been named as an executor or administrator of someone’s estate in the state of Texas, you need to know what duties and responsibilities come with the job. This article will go over your legal requirements, highlighting what you need to do before beginning.
Probate Case Law
Olguin v. Jungman, 931 S.W.2d 607 (Tex. App. – San Antonio 1996, no writ)
Facts & Procedural History: Will Requirements
John E. Bakke, III drafted wills for Dr. Robbie Brunner and Maria Flores. Dr. Brunner’s will include provisions that: (1) named Maria Flores as a beneficiary and (2) created a testamentary trust with the intention of providing Flores with income over her lifetime. Flores named Contestant Angelita Olguin as her primary beneficiary for the trust. Harold Jungman, an accountant, was listed as the independent executor of both the Brunner and Flores wills. Jungman was also listed as the trustee for the Brunner Trust, which was an Internal Revenue Service sanctioned section 643 Charitable Remainder Trust. As trustee, Jungman was required, under the trust and the Internal Revenue Code (“IRC”), to make periodic payments to Maria S. Flores during her lifetime. The Trust and IRC specified the mode of calculating those payments.
Brunner died in October 1991 and Flores died in March 1995. Following Flores’s death, Jungman, as independent executor, requested the return of a vehicle that Flores gifted to Olguin. Jungman wished to sell the vehicle and use the funds to pay off debts of the estate. This act ultimately led Olguin to declare that there was a conflict of interest because Jungman was both the executor of the Flores estate and the Brunner trustee. This caused her to challenge the trial court’s order granting Jungman letters testamentary as Flores’ independent executor. Olguin argued that the trial court abused its discretion by (1) appointing Jungman as executor of the estate, (2) failing to require Jungman to post bond, and (3) failing to preclude John E. Bakke, III, from representing the executor of the Flores estate.
The Court of Appeals affirmed the judgment of the trial court, holding that: (1) the probate code provision that disqualifies an unsuitable person also applies to an independent executor; (2) Jungman could serve as both an independent executor and a trustee (the potential conflict of interest did not made him unsuitable); (3) failing to require bond was not an abuse of discretion; and (4) declaring an intent to call trustee’s attorney as witness did not mandate disqualification. For the first issue and second issues, the Court stated that Olguin failed to prove her burden that the trial court’s judgment was an abuse of discretion. For the third issue, the Court stated that, while normally an attorney should not serve as both counsel and a witness for a case, disqualification is mandatory only when the testimony of the attorney is required and is prejudicial to the attorney’s client. This was not the case here.
Main Considerations of Estate Law
What characteristics make a person unsuitable to serve as an independent executor or an administrator for an estate?
The Court stated that there is not a comprehensive explanation defining the specific attributes that makes someone unsuitable. However, case law suggests that a person is not simply disqualified by only a statement of another, and that the trial court has broad discretion in making this determination. A common reason for a person being declared unsuitable includes their claiming estate property as their own and having it excluded from the estate’s probate. In comparison, an individual who is making a claim within the probate process (a person claiming under the will or attempting to collect a debt from the estate) is not excluded.
The Takeaway
Olguin v. Jungman shows that, to prove that a trial court’s order appointing a person as an independent executor is an abuse of discretion, the party opposing the application must do more than present simply provide evidence that another court might have ruled differently. The opposing party must show that the court: (1) acted without the assistance of any guiding rules or principles and (2) that the act was arbitrary or unreasonable.
Do you need to hire an Experienced Probate Attorney to help explain your duties and responsibilities under a Texas Will?
If you are named as an executor in a will, it is your responsibility to ensure that the deceased person’s wishes are carried out according to the terms of the will. This can be a daunting task, especially if you are not familiar with the probate process in Texas.
An experienced probate attorney can help you understand your duties and responsibilities as an executor, and guide you through the probate process. They can also help resolve any disputes that may arise among the beneficiaries of the estate.
If you are considering serving as an executor, contact an experienced probate attorney to discuss whether you are suitable for the task. (210) 436-6601.
Related questions
Who should you choose as executor of will?
When it comes time to choose an executor for your will, it’s important to select someone who is responsible and organized. But what other qualities should you look for in a potential executor? Here are some things to consider when choosing an executor for your will in Texas:
1. The executor should be over the age of 18.
2. The executor should be a resident of Texas.
3. The executor should be someone you trust implicitly.
4. The executor should be comfortable dealing with financial matters.
5. The executor should be willing to take on the responsibility of managing your estate.
If you have any questions about whether someone is suitable to serve as your Texas executor, it’s always best to consult with an experienced estate planning attorney.
Can an out of state resident be an executor in Texas?
The answer is yes, but there are a few things to keep in mind.
If you live in another state but own property in Texas, you can name a resident of Texas to serve as your executor in your will. If you don’t live in Texas but are named as the executor of a will of someone who does, you’ll need to appoint a qualified agent to represent you in Texas. An out-of-state executor must also follow the rules and procedures for probate in Texas.
It’s important to choose an executor who is organized and detail-oriented, as they will be responsible for handling the deceased person’s affairs and distributing their assets according to their wishes. If you’re not sure whether someone is up for the task, you can always name more than one executor in your will.
What disqualifies an executor in Texas?
Under Texas law, you can be removed as the executor of an estate for flagrant misconduct, mismanagement, or theft of the estate’s assets. If enough evidence exists to believe you have stolen money or property under your control, you can be removed.
Who can serve as executor in Texas?
In Texas, the executor is the person named in the decedent’s will to carry out the instructions in the will. If there is no will, then the court will appoint an administrator. The executor must be at least 18 years old and of sound mind. The executor does not have to be a resident of Texas, but it may be difficult to administer the estate from out of state.
How long do you have to file probate after death?
In Texas, you have four years from the date of death to file probate if there is a will. If no will, then there is no time limit.
Related questions
Who should you choose as executor of will?
When it comes time to choose an executor for your will, it’s important to select someone who is responsible and organized. But what other qualities should you look for in a potential executor? Here are some things to consider when choosing an executor for your will in Texas:
1. The executor should be over the age of 18.
2. The executor should be a resident of Texas.
3. The executor should be someone you trust implicitly.
4. The executor should be comfortable dealing with financial matters.
5. The executor should be willing to take on the responsibility of managing your estate.
If you have any questions about whether someone is suitable to serve as your Texas executor, it’s always best to consult with an experienced estate planning attorney.
Can an out of state resident be an executor in Texas?
The answer is yes, but there are a few things to keep in mind.
If you live in another state but own property in Texas, you can name a resident of Texas to serve as your executor in your will. If you don’t live in Texas but are named as the executor of a will of someone who does, you’ll need to appoint a qualified agent to represent you in Texas. An out-of-state executor must also follow the rules and procedures for probate in Texas.
It’s important to choose an executor who is organized and detail-oriented, as they will be responsible for handling the deceased person’s affairs and distributing their assets according to their wishes. If you’re not sure whether someone is up for the task, you can always name more than one executor in your will.
What disqualifies an executor in Texas?
Under Texas law, you can be removed as the executor of an estate for flagrant misconduct, mismanagement, or theft of the estate’s assets. If enough evidence exists to believe you have stolen money or property under your control, you can be removed.
Who can serve as executor in Texas?
In Texas, the executor is the person named in the decedent’s will to carry out the instructions in the will. If there is no will, then the court will appoint an administrator. The executor must be at least 18 years old and of sound mind. The executor does not have to be a resident of Texas, but it may be difficult to administer the estate from out of state.
How long do you have to file probate after death?
In Texas, you have four years from the date of death to file probate if there is a will. If no will, then there is no time limit.
