Two Sets of Hands Filling Out Paperwork


Charles Kennedy Sept. 12, 2015

It is easy to forget or not realize some very important points about probate.  Probate is a process that only occurs in Court.

A Will is just a piece of paper until someone dies and a Probate Court decides that it is valid.   Once in probate, only the personal representative of the Estate has the authority to make decisions about property in the estate.   Sometimes even the personal representative (also called executor or administrator sometimes) does not have the authority until the Judge says he does.

An estate is not in “probate” until an application is made to a Court with the proper authority and a person is appointed to manage the estate.     If you are named as Executor in a Will you have no authority to do anything until a Judge says you do. So to be safe, take the Will to an attorney and find out what needs to be done.

This means that frequently no one should pay bills outside the probate process,   release control of assets to a creditor or third party or make other decisions about the estate until a competent attorney has been consulted and a probate estate opened.

To do any of the above actions outside probate could create financial liability to the creditors and/or beneficiaries of the estate by the person acting without authority.   If you are not the Executor or Administrator,  even if you are named as Executor in a Will but have not yet been to Court, do not take actions that cannot be changed later.

Only the person named by the Court to manage an estate has the authority to make decisions about an estate.  Often the Executor will only make those decisions after careful consultation with an attorney, discussion with the beneficiaries and sometimes not until the issue is presented to a Court.

If you are the named executor and the only beneficiary you can probably act without liability to anyone but a creditor, but acting without legal advice could cost you money you do not have to spend.

If you are appointed as the personal representative of an estate you have special duties that are called fiduciary duties to the heirs/beneficiaries of the estate.  You must be fair to all of the beneficiaries; you must be loyal to their interests–even possibly to the harm of your own interests; you must provide all necessary information to the beneficiaries so that they can make any necessary decisions about their interests; and you must be competent in managing the estate.   These fiduciary duties are often what makes being an executor so difficult because your duty to one person may conflict with your duty to someone else.

Creditors also have rights regarding assets within an estate and the claims must be dealt with according to the Texas Estates Code.    It is not uncommon that a creditor will make a demand that it be paid when if payment is left to the probate process it will be denied payment because another party will have superior right to the proceeds or assets of the estate.

Do not assume that because someone is an heir or believed to be an heir or beneficiary that the person has the right to do things with assets of the estate outside the probate process.  Hopefully,  this provides more light than heat.  The blogs about creditors should be read with this one to have a better understanding of the pitfalls a personal representative faces.