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There is a myth that ALL probate procedures are like a horror movie!  In some states like Florida and California that can certainly be the case.  But I tell people all the time that Texas is a truly probate-friendly state. (This is not to say there cannot be problems and delays in probate, but with a professionally drafted valid Will, that can usually be avoided.)

The reason this is true is because Texas is one of the few states that provides for Independent Administration (“IA”).  This means that after an independent executor or administrator is approved and an inventory of estate assets or an affidavit, as an alternative, is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision.  The independent executor is free to carry out the directions of the Will.  These tasks can include such things as settling with creditors, managing the property of the estate, selling assets for payment of debts, and distributing the remaining estate to the beneficiaries named in the Will (or if no Will – according to the Texas laws of intestacy) – all without the court’s involvement. 

The total opposite of an IA is a Dependent Administration (“DA”).  In a DA, the executor or administrator is required to seek the court’s approval before doing ANYTHING and EVERYTHING that needs to be done to settle the estate.  This results in delays and greater expense.

Possible for Both Testate Estates and Intestate Estates

Generally, a well drafted Will contains a provision that the executor or administrator will serve independently.  However, if the Will does not contain this provision, or if there is NO Will, it is possible for the court to allow an IA if all of the beneficiaries or heirs agree to it.  Although courts usually permit IA in cases where it is not provided for in a Will, the court always has the power to deny this request.  Therefore, it is in your best interest to have a Will that provides for an IA. 

Overview of the Process of Independent Administration

  • Step 1:  The applicant (often the executor) should contact a probate attorney for a legal consultation to discuss probate alternatives and probate specifics.

  • Step 2:  The attorney files an application for probate after receiving documents needed from the executor and sets up a hearing date with the court.

  • Step 3:  The applicant and the attorney attend the probate court hearing. At the hearing, the Court determines if the Will (if there is one) is valid or invalid.  After the hearing, you will obtain Letters Testamentary from the probate clerk.  Letters Testamentary is the document that gives you the legal authority to handle the estate.

  • Step 4:  If the Decedent died without a Will, the Court will make a formal determination as to the identity of the Decedent’s heirs according to the intestacy laws of Texas. 
  • Step 4: The attorney will ensure that legal notices that are required by law are handled.  This includes a notice to creditors that must be posted in a local newspaper.  Creditors owed money by the Decedent at the time of death are given the opportunity to file claims against the estate and seek repayment.

  • Step 5:  The executor collects all the assets, collects all the outstanding debts of the estate and opens an estate bank account.

  • Step 6:  The executor will complete an inventory of the assets of the estate and provide it to the attorney.  Depending on the specifics of each estate, the attorney will either file the inventory with the court or will submit an affidavit in lieu of the inventory.

  • Step 7:  Utilizing the assets of the estate, the executor will pay the debts and then distribute the remaining property according to the provisions of the Will, or if there is no Will, according to the Texas laws of intestacy as determined by the Court. 

In most instances, when the estate is not complex, the administration of the estate can be generally be completed in a matter of weeks. Of course, if the estate is complex, or if there is a Will contest, the administration can go on for months or even years.