Dependent Probate Administration

Before filing the probate application, one has to make a choice between dependent or independent probate administration.

The term “dependent administration” refers to the probate being administered by the personal representative with direct supervision by the court. As explained below, dependent administration is an extremely restrictive method for administering an estate. This differs from “independent administration” where the court has very little involvement.

The Dependent Administrator’s Powers

With a dependent administration, the personal representative’s powers as a dependent administrator are very narrow.

The dependent administrator has to get a court order to perform most acts that bind the estate. For example, the dependent administrator has to get a court order to review any obligation owed to the estate, purchase or exchange property, take claim or property to pay debts, settle the estate’s debts, abandon the worthless property, sell or transfer assets, borrow money, receive compensation for serving as the administrator, etc.

These and other restrictions on the dependent administrator’s powers are set out in several sections in the Texas Estates Code.

When is Dependent Administration Used?

Dependent administration is the default method for administering a probate estate. It is used if the decedent’s will did not provide for an independent administrator or, in the absence of a will, all of the heirs do not consent to independent administration.

Dependent administrations can be useful if:

  • The estate has more debts than assets or
  • There are likely to be disputes between the heirs or others as to distributions.

Both of these circumstances put the independent administrator in the unenviable position of having to make choices that could result in liability for the estate or the independent administrator personally. Dependent administrations may be better in these cases, as the court order in a dependent administration may be used as a shield to protect against this type of liability. Dependent administration may also avoid protracted litigation involving these issues.

Independent Administration

We have previously covered dependent administration. Independent administration is the other choice in the dependent-independent dichotomy. The term “independent administration” refers to an estate being administered by the personal representative with little supervision by the court.

Limited Court Involvement

With an independent administration, the personal representative’s powers in an independent administrator are broad. Texas Estates Code Sec. 402.002 provides that “any action that a personal representative subject to court supervision may take with or without a court order may be taken by an independent executor without a court order.” This allows the independent administrator to make most of the major decisions for the estate.

When is Independent Administration Used?

Independent administration is the preferred and most common method for probating estates in Texas. Independent administration can save time and cost substantially less.

Independent administration can only be used if authorized in a valid will or, in the absence of a will, if all of the heirs have been identified (in a proceeding to declare heirship) and if all of the heirs consent to independent administration. The consent requirement can be problematic when there is no will, as all of the heirs may not want independent administration or they may not trust the person who is to be the independent administrator.

It should also be noted that in the absence of a will, the probate court may not grant an independent administration if there are minor heirs and an administration is needed.

When Independent Administration is Not Advisable

There are circumstances where an independent administration is not advisable. This includes situations where:

  • The estate does not have sufficient assets to pay all of the known creditors or
  • The estate or distributions are likely to be contested by the heirs or others.

The personal representatives in these cases may prefer to have the court make the decisions via a dependent administration to avoid liability or protracted litigation.

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Related Questions

What does the independent administration of estates act allow you to do without a court approval and what code section applies?

What does the independent administration of estates act allow you to do without a court approval and what code section applies?

Also called the Independent Administration of Estates Act, Texas probate laws are in place to deal with the transfer of assets after someone dies. The Independent Administration of Estates Act also allows for an estate to be managed by an administrator alone if there is no will and none of the beneficiaries stand in opposition to it.

What is independent probate in Texas?

Independent probate in Texas is when the deceased has left a will that names an executor to carry out their final wishes. This type of probate is overseen by the court, and the executor must follow certain rules and procedures to ensure that everything is done correctly. If there are any disputes among beneficiaries or creditors, the court will resolve them.

The executor has many responsibilities, including gathering all of the deceased’s assets, paying debts and taxes, and distributing the remaining assets to beneficiaries. They must also keep accurate records and account for all money spent during probate. The process can be complex and time-consuming, but it is important to do things right so that your loved one’s final wishes are carried out according to their desires.

How to become administrator of estate?

The role of administrator of estate is important and comes with great responsibility. Those who take on this role must have knowledge of laws and court procedures, as they will be responsible for filing the probate petition and following required procedures. Additionally, administrators may face challenges from beneficiaries and creditors which must be dealt with in a professional manner.

How to become executor of estate or executor of a will in Texas?

There are a few things you need to do in order to become the executor of an estate in Texas. First, you must be named in the will as the executor. If there is no executor named in the will, then the court can appoint someone who is related to the decedent by blood or marriage and who is not named as a beneficiary of the will. This person must be at least 18 years old and capable of serving as Executor. The court will appoint this person as “administrator with will annexed”.

If there is no one willing or able to act as Executor, the court may appoint a person selected by majority vote of interested persons, that is, persons either entitled to distribution from the estate or who may be creditors of the decedent.

If there are no persons willing or able to serve as Executor, the county clerk may issue an order calling on any person interested in the estate to file an application for qualification within 60 days.

What happens after letter of administration?

After the Letter of Administration is issued, the first thing you should do is make sure that you have a proper inventory and appraisal of the decedent’s estate. As the temporary administrator, you are responsible for all the property in the decedent’s estate, whether or not it was probated. If a will is found later, it does not affect the administration of the letter of administration.

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