Jennie’s father wanted to name her as independent executrix in his will. She felt obligated, but also felt nervous.
Jennie called her good friend, Amy, who is an Elder Law attorney for answers. Amy reviewed the will for the exact language Jennie’s father used in naming Jennie to act as his agent in probate.
After Amy reviewed the will, they had the following conversation.
What do I have to do when Daddy dies?
The probate court will review your father’s will and determine its validity. Since your father has appointed you as his “independent executrix,” the court will issue “Letters Testamentary” giving you the authority to handle your father’s estate.
How does that work?
I recommend you retain a lawyer experienced in probate matters for assistance, and you may need an accountant to help you with tax issues.
The lawyer will file an application for probate which gives the date of death, attaches the original will and asks for you to be appointed executrix. He files the original of the will in the probate court in the county where your father died or in which he has his property. You both live in the same county, and all of his property is here.
You will file in the county court, which handles probate matters, setting up your father’s probate action.
The court assigns a case number and your lawyer requests a hearing date.
What is a hearing?
You and your lawyer appear before the judge. The lawyer will ask you questions designed to show the will’s validity.
In your case, your father’s will contains a “self-proving affidavit,” so you don’t have to produce witnesses who signed the will.
The judge will just review the self-proving affidavit and to make certain it is proper.
Your lawyer will ask questions that you answer to prove you are qualified to serve as executrix.
Some courts have the executrix present all this information through an affidavit in which the executrix swears the information is true, and the judge will hear your testimony.
After the judge hears the testimony and you take the oath to serve properly, the judge issues the Letters Testament, giving you authority to settle the estate.
Your father’s will contains a provision that allows you to serve without having to get a bond and without having the court supervise the actions you take in handling his property.
How do I 'settle the estate'?
You determine the property your father owned, its value and the claims against his estate. Bank accounts, stocks and bonds will be easy for you to value, but some property like real estate or antiques may require an appraisal.
What does 'claims against the estate' mean?
For the most part, claims are debts your father owes to creditors. You have to publish a notice in the local newspaper stating you have been appointed executrix. If there are claims against the estate, claimants must present them.
If your father has secured creditors, like a mortgage company, you must present the creditor a written notice.
If he has unsecured debt, like credit cards or department stores, you may choose to notify them or wait until they file a claim.
When claims are submitted, you decide whether to accept or reject them.
You file with the court a list that identifies all property with its value and includes the names of individuals or companies making claims and their amounts.
What if I reject a claim?
A rejected creditor may file a suit in the probate court to have the court rule on the validity of the claim.
What if I want to pay all debts?
If you have sufficient money in the estate, you can. But, if there isn’t enough money, they are classified as Class 1, Class 2, etc., and the money is divided to pay them according to the law.
What if he has enough money?
You pay all the debts and taxes and distribute what is left to the people named in his will as stated.
How long does this take?
Many estates can be settled quickly depending upon the nature of the property, the number of claims and whether property has to be sold before it is distributed.
When there is a tax issue, the estate tax return will take longer to prepare. It can take months, even a year or more, if there are complications.
If he kept meticulous records and the estate isn’t large enough to have estate taxes, your job should be relatively simple.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth who lives in Somervell County. If you have questions about this column or wish to suggest a topic of interest, she may be contacted at (254) 797-0211 or email@example.com.