Texas state law mandates that for any probate matter, a personal representative must be appointed in order to represent the decedent’s estate. But what exactly does that mean? How can one determine who is capable and eligible to be the personal representative? And what qualities do they need to possess in order to serve this role successfully?
About the Personal Representative
The personal representative is the person tasked with administering the estate, and they have to make sure that all of their tasks are completed. Their tasks include:
- Securing and collecting the decedent’s assets
- Giving notice to the decedent’s creditors and paying valid claims
- Filing the decedent’s final income tax and estate tax returns
- Winding up decedent’s affairs
- Distributing the remaining assets to the beneficiaries
It should be noted that tasks for a personal representative are different than their duties. Duties are things that must be done otherwise the personal representative may be held liable for not completing them or not done in time:
- Keeping the beneficiaries informed.
- Accounting for revenue received, money spent, assets transferred, etc.
- Keeping the estate finances separate.
- Making productive use of assets, i.e., not leaving estate funds univesnted.
- Not engaging in self-dealing.
- Collecting and protecting estate assets, including maintaining insurance.
- Providing notice to creditors.
- Preparing an inventory and filing an annual accounting.
- Filing tax returns.
Guidelines to be Appointed as a Personal Representative
Not everyone is eligible to be a personal representative. The probate court sets guidelines for the capacity to serve as an estate’s personal representative, which can include:
- The individual’s age must be over 18
- The individual’s mental and physical health
- The nature and extent of the individual’s property interests
- The length of time the individual has been a resident of Texas
- The number of duties the individual would be required to perform
- Whether or not the individual is related to the decedent
In addition to having the legal capacity to serve, the court will also consider whether or not the individual has the desirable characteristics to serve. The court will look at whether or not the individual is capable of performing their duties in a prompt, efficient, and organized manner. The court will also consider whether or not the individual is capable of working well with others and communicating effectively.
Qualities of the Personal Representative
There are a number of qualities that are important for a personal representative in a Texas probate matter. They include:
- Honesty: The personal representative must be honest and transparent when dealing with the decedent’s property, assets, their family, and beneficiaries.
- Common Sense: The personal representative must be able to make sound decisions based on what is best for the estate and the beneficiaries.
- Good Judgment: The personal representative must be able to weigh all options and make the best decision for the estate and the beneficiaries.
- Fiduciary Responsibility: The personal representative has a fiduciary responsibility to the estate and beneficiaries, and must act in their best interests and exercise a reasonable degree of care when handling estate matters.
- Financial Responsibility: The personal representative must maintain accurate records of all income and expenses, paying any debts and taxes owed by the estate, and ensuring that beneficiaries receive their inheritances in a timely fashion.
- Organizational Skills: The personal representative must be able to keep track of all documents, deadlines associated with the probate process, and be ready to handle a large volume of work and juggle multiple tasks at once.
- Communication Skills: The personal representative must be able to communicate with all parties involved in the probate process, including beneficiaries, creditors, and attorneys.
- Awareness of Legal Issues: The personal representative should have a general understanding of the probate process and the laws that govern it, as well as the ability to identify and understand legal issues that may arise during their administration of the estate along with any legal recourse to remedy them.
- Persistence: The personal representative must be willing to see the probate process through to completion, even if it takes longer than expected.
- Longevity: Although there is no set time expectancy for the probate process, the personal representative must be ready to serve anywhere between three to five years.
- Proximity: The personal representative should live in close proximity to the decedent’s home so that they can easily attend to the probate matter.
Assuming there is no Will, the Texas Estates Code establishes the order of succession for who may serve as Personal Representative.
First in line are any qualified surviving spouses. If there is no spouse, or the spouse declines, then adult children may serve. If there are no children, or none are willing or qualified to serve, then the task may fall to the parents of the decedent. When all of the above fail, other close relatives may be appointed by the court in the following order: brothers and sisters, grandparents, aunts and uncles, first cousins. Beyond that, any other suitable person petitioning the court may be appointed Personal Representative.
A personal representative in Texas must possess certain legal capacities and desirable characteristics to effectively manage the probate process. These include knowledge of estate planning law, financial acumen to handle assets, good communication skills, as well as an ethical framework that is based on honesty and fairness.
The personal representative’s role is critical to ensure that the deceased’s wishes are carried out properly according to the law. In order for this important duty to be performed adequately, it is essential that all these qualifications are fulfilled by any individual who intends to serve in this capacity.
Do you need help with a probate matter in San Antonio or the surrounding area? We are San Antonio probate attorneys. We help clients navigate the probate process. Call today for a free confidential consultation, (210) 239-8518.
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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.