One of the first steps in the probate process is the appointment of a personal representative (Executor/Executrix) to oversee and administer all of the fiduciary responsibilities of the estate, as indicated in your Will. If you have no will and pass intestate, the court will appoint a representative to over see your estate, usually a relative of the highest priority.
What Is an Executor /Personal Representative Administrator?
Many states have different names for the person you select to administer your Estate. In Texas, this person is known as an Executor or Executrix. In other states, they are known as Administrators or Personal Representatives. What ever title is used, they all have the same duties: to oversees the probate process of a deceased estate and to properly distribute the assets of the estate to the decedents beneficiaries or other named persons or entities. He or she is also responsible for paying off all of the debts owed by the deceased (if the specific debt(s) owed at the time of death, must be paid back). Research is required to determine is a debt is owed, and if it is owed, a settlement agreement must be drafted and entered into in order to protect the estate and secure that the debt has been paid. As to the remaining assets of the estate, the Executor is responsible for distributing the assets as stated in the Will and they must keep a record of the distribution so that a report can be presented to the court in closing the estate.
How is an Executor or Personal Representative Appointed?
There are three ways in which a person can be appointed as an executor to oversee the decedents probate process. First, a person may be specified the Executor in the Will of the deceased. Next, if the person died intestate, meaning without a valid Will, two options to appoint the representative can take place: 1) after the probate petition is filed, and at the first hearing, the court will appoint one of the beneficiaries of the estate to oversee the probate process, usually in this order: the living spouse; if no spouse: the oldest child. If no child(ren), a parent, and if no parents, a sibling. If no sibling(s), a non-immediate family relative of the decedent. Lastly, the family members can agree on the person to be appointed as the representative and that person or their legal representative will file the Request to be Appointed as Executor with the court.
Who should you choose to be your executor?
Choosing the right person as your personal representative is essential to ensuring the successful probate of your estate. Unfortunately, not everyone is qualified to serve in this capacity. For example, minors or convicted felons cannot be appointed as they are prohibited by law as serving as an Executor. Also, anyone who was specifically disqualified by the decedent in the Will to act as an Executor, in most cases, may not be appointed by the court as an Executor. The only way to overcome the decedents desire to not have a specific person appointed, if that person falls under the category of first in line to serve, such as a spouse, is for that person to file a petition to be heard. Hearings will be held to determine if the decedent was mentally stable at the time of signing the Will and if the court finds that the person who was denied the opportunity to serve was mentally fit and there is no other possible person who can serve as the executor, the court can override the decedents wishes and name the person who was excluded, in the best interest of the decedent. In addition to this, Executors can be removed, again by filing a Motion with the court stating the reasons why the representative should be removed as the administrator.
Seek the assistance of a competent estate planning or probate lawyer who can advise you as to the best options and who can help you determine the best person that should be appointed to assist you in distributing your estate.
When to Seek Legal Advice?
You should seek the advice and assistance of a qualified attorney immediately, especially if you have no Will. An experienced probate or estate planning attorney can assist you in drafting your desires, selecting witnesses to sign the Will at eh time you sign it, and they will prepare the Will, the necessary Affidavits and the Ancillary documents that go along with the Will instead of using boiler plate prepared Wills that are thrown out in court all of the time. You should also seek the advice of an attorney if you have any doubts as to the validity of the appointment of the personal representative or the drafting of your Will.
Your estate planning or probate attorney will be able to assist you with verifying your rights as beneficiary and possibly contesting the Will if you are concerned about its authenticity or in disputing the representative that was or has been appointed. You may also need to seek the guidance of a skilled probate attorney if you have just been named as the personal representative of an estate, in order to ensure your rights and duties of the appointment and so that you fully understand your fiduciary duties and the legal requirements in being appointed as an Executor / Executrix of someone’s estate.
If you need an attorney who can draft your Will or make changes to your Will, contact one of our representatives at Goldstein & Scopellite, PC by emailing us or by calling us at 214-351-9100. Thank you.
