When you’re making your will, one of the most important decisions you’ll make is who will serve as your personal representative. Your personal representative is the person who will be responsible for carrying out your wishes after you die, so it’s important to choose someone you trust implicitly.
There are a few things to keep in mind when choosing your personal representative. First, they should be someone who lives in Texas. Second, they should be over the age of 18. And third, they should be someone who you think will be able to handle the duties of the position.
Once you’ve chosen your personal representative, be sure to include their name and contact information in your will. If you have any questions about choosing a personal representative or any other aspect of estate planning, please contact an experienced Texas estate planning attorney for help.
The Personal Representative in a Texas Will
When a person dies without a will in Texas, the court will appoint a personal representative to administer the estate. The personal representative is responsible for paying the deceased person’s debts and distributing their assets according to Texas law.
If a person dies with a valid will in Texas, they can name any person they wish to serve as their personal representative. The personal representative must be at least 18 years old and cannot be convicted of a felony.
Once the personal representative is appointed, they must take an oath to faithfully discharge their duties. The personal representative has the power to do any necessary act to settle the estate, including selling real property and investing funds.
The personal representative must give notice to all interested parties of their appointment within 10 days. They must also provide an inventory of the deceased person’s assets and liabilities within 90 days of taking office.
Duties of the Personal Representative
The duties of the personal representative are to:
· settle the estate according to the terms of the will;
· pay the debts and expenses of the estate;
· file any required tax returns and pay any taxes due;
· distribute the assets of the estate to the beneficiaries; and
· keep accurate records and provide periodic accounting to the court and beneficiaries.
Selecting The Personal Representative
Specialized knowledge, training or experience is not required to serve as a personal representative in a Texas probate. However, the person needs to have the basic skills necessary to carry out these tasks, the time available to do so, and a willingness to do so.
We use the term “personal representative” interchangeably to refer to the executor (if there is a will) or the administrator (if there is no will) as a matter of convenience for readers. Court documents should be prepared using the more accurate term executor or administrator rather than the informal term personal representative.
Persons Eligible to Serve as Administrator or Executor of your Estate
While there are no specific qualifications for serving as a personal representative in Texas, there are rules for who can serve and rules that disqualify certain people from serving. The probate court will grant letters testamentary or of administration to qualified persons in the following order:
- The person named as executor in the decedent’s will
- The decedent’s surviving spouse
- The principal devisee of the decedent
- Any devisee of the decedent
- The next of kin of the decedent
- A creditor of the decedent
- Any person of good character residing in the county who applies for the letters
When two or more persons are equally entitled, the court will appoint the person who, in the judgment of the court, is most likely to be able to administer the estate effectively.
There are also several instances where people cannot serve. Texas law provides that the following persons are disqualified from being appointed as personal representatives:
- Minors and incapacitated persons
- Persons convicted of a felony
- Those who are not individuals, such as corporations
- Those who are unsuitable, such as persons who have an adverse interest in the estate or who would bring discord to the estate administration
The probate courts may also refuse to appoint others who are deemed unfit to serve.
The Registered Agent
While the personal representative does not have to reside in Texas. If the personal representative is not a Texas resident, they need to appoint a Texas registered agent. The registered agent is the person designated to accept service of process in the probate proceeding. This is usually done by filing an Appointment of Registered Agent with the county clerk that cites Texas Estates Code § 304.003.
The registered agent can be removed and replaced by filing a Designation of Successor Registered Agent with the county clerk. Similarly, the registered agent can resign by filing a Resignation of Registered Agent with the county clerk. The procedures for this can be found in Texas Estates Code §§ 56.001 and 56.002.
Waiver of Right to Serve
Just because a person is named in a will or has the first priority right to serve, they do not have to serve if they do not want to. Any person who has priority to serve as personal representative may waive that right by filing a written waiver in court.
The person has the ability to name another qualified person to serve in their place. The probate court may appoint that person to the exclusion of any other person who does not have priority equal to the designated person. The waiver of the right to serve only binds the person making the waiver and any persons who have a lower priority to serve. If there is more than one person in the same degree of kinship in the priority list, both must join in the waiver or the other persons in this class may assert their right to serve.
If there is a waiver, the probate application has to specify which executor named in the will is not going to serve. The probate courts generally require a notarized waiver in the file before they will consider the probate application. The probate courts may also require other evidence:
- If the person is not serving because they are dead, the probate courts may also require a copy of the person’s death certificate to be on file with the court. If the death certificate is not available, the probate court may accept the cause number and jurisdiction where the person died or a published obituary.
- If the person is not able to serve as they have a felony criminal record, the sentencing order or other proof of conviction should be provided to the court.
- If the person is not able to serve as they are incapacitated, a guardianship cause number or letters from one or two doctors may need to be provided to the court.
- If the person is not able to serve as they are divorced from the decedent after the date of the will, the divorce decree needs to be provided to the court.
- If the person is not able to serve as they are a minor, a birth certificate may need to be provided to the court.
The right to serve may also be waived by failing to contest the appointment of another person. If someone else is already appointed and someone with higher priority wants to serve, they will have to demand that the letters testamentary for the other person be revoked.
How to Choose the Personal Representative in Your Will
When you are creating your will, you will need to choose someone to serve as the personal representative. This is the person who will be responsible for carrying out your wishes after you pass away.
There are a few things to consider when choosing your personal representative. First, you need to decide if you want this person to be a family member or friend. If you choose a family member, keep in mind that they will have to be willing and able to take on this responsibility.
Next, you need to think about whether or not the person you select lives in Texas. If they do not live in Texas, they may have difficulty fulfilling their duties.
Finally, you need to make sure that the person you choose is over the age of 18 and has no criminal history. You can name more than one personal representative in your will, but it is important to make sure that each person meets these qualifications.
As you can see, there are a few different options for who will serve as the personal representative in your Texas will. Ultimately, the decision is up to you and should be based on who you think would be best suited for the job. If you have any questions, please consult an experienced estate planning attorney who can advise you on this and other important matters related to your estate plan.
The Importance of an Experienced Attorney
If you have recently lost a loved one and are in the process of estate administration, you may be wondering who will serve as the personal representative in your Texas will. The personal representative is responsible for carrying out the deceased’s wishes as outlined in the will, and it is important to choose someone who is up to the task.
An experienced estate attorney can help you understand the duties of a personal representative and make sure that the person you choose is qualified to handle the job. The attorney can also help you resolve any disagreements that may arise during the estate administration process.
serving as personal representative is a big responsibility, and it is not something to be taken lightly. If you are considering appointing someone to this role, make sure you consult with an experienced probate attorney first.
Are executors and personal representatives the same?
In Texas, the terms “executor” and “personal representative” are used interchangeably. The person named in a will to carry out the decedent’s wishes is called an “executor.” If there is no will, or if the will does not name an executor, or if the person named as executor is unable or unwilling to serve, a court will appoint a “personal representative” to administer the estate.
Who can serve as executor in Texas?
There is no specific list of who can serve as executor in Texas, but generally, the court will appoint whomever the deceased person has named in their will. If there is no will, or if the will does not name an executor, the court will appoint a close relative or friend of the deceased. The executor must be at least 18 years old and must not have been convicted of a felony.
Who will appoint the personal representative?
In Texas, the probate court will appoint a personal representative if the decedent dies without a valid will. The court will usually appoint the person named in the decedent’s will, if that person is willing and able to serve. If there is no will, or if the person named in the will is not willing or able to serve, the court will appoint a family member or other interested party.
What power does a personal representative have?
When you die, your personal representative will oversee the distribution of your assets in accordance with your will. The personal representative is responsible for:
– notifying the beneficiaries of the estate
– collecting and inventorying the assets of the estate
– paying debts and taxes owed by the estate
– distributing the assets of the estate to the beneficiaries
If there is no will, then the court will appoint a personal representative to administer the estate. The court may also appoint a personal representative if there are concerns that the person named in the will is unable or unwilling to serve.
How to get a letter of administration in Texas?
Assuming you are asking how to get a letter of administration in Texas after the death of a loved one, the following is general information. The process may vary slightly from county to county, so it’s best to check with your local county court for specific requirements.
First, you will need to file a petition for probate and submit it to the court. You will need to provide the court with certain information about the deceased person and their estate. Once the petition is filed, the court will appoint an administrator.
The administrator will be responsible for gathering all of the assets of the estate and distributing them according to the terms of the will (if there is one) or Texas law (if there is no valid will). This can be a difficult and time-consuming process, so it’s important to choose an administrator who is up for the task.
If you have been named as an executor in someone’s will, you may not need to go through this process – you can simply request that the court issue you a “letter of testamentary.” This document gives you authority to act on behalf of the estate.
Once you have been appointed as administrator or have received a letter of testamentary, you can begin working on settling the estate. This includes contacting creditors, paying debts, filing tax returns, and distributing assets to beneficiaries.
Settling an estate can be complicated and time-consuming, but it’s important to do it correctly. If you need help, contact an experienced probate attorney. Call us for a FREE consultation at (210) 436-6601.