In most cases, the Independent Executor, designated as such in the Decedent's Will, commences the probate process by filing an Application for Issuance of Letters Testamentary in the County Court, or Statutory Probate Court, of the Decedent's residence, at the time of death. Following a brief evidentiary hearing, the will is admitted to probate and the Independent Executor appointed to serve as the personal representative of the Decedent's Estate. Generally, an executor's bond is waived; however, the Executor must publish a general notice to creditors in a local newspaper and also file an Inventory, Appraisement and List of Claims evidencing the nature and extent of the assets comprising the Decedent's Estate. Having done so, the Independent Executor would generally proceed with payment of the creditors and a final distribution of the remaining assets, without the necessity of court supervision. The typical independent administration is neither time-consuming nor expensive.
Complications arise when the Will omits the designation of an executor, or fails to state the executor should serve independent of court supervision, or when the Decedent dies intestate (without having executed a Last Will & Testament). These circumstances usually involve a dependent administration, in which the court will require the posting of a substantial bond to cover the value of the property subjected to administration. The Court must then supervise virtually all of the activities of the personal representative, during the entire course of the estate administration. In a dependent administration, both the personal representative and the attorney are required to devote considerably more time and effort to the task at hand, as sales of property, payments to creditors, distributions to estate beneficiaries and other necessary legal proceedings all must be founded upon written application and made the subject of formal court hearings. In some cases, the potential distributees of an estate may collectively agree to convert a dependent administration into an independent administration.
The Executor serves as a fiduciary, subject to legally recognized duties of loyalty and disclosure owing to the beneficiaries and creditors of the estate. The Executor must respect the rights of all parties interested in the estate, even those who may be in conflict with the Executor, or with each other. The Executor is responsible for ensuring that the creditor's claims are properly addressed, that all taxes are paid to the appropriate governmental entities and that the Decedent's property is fairly distributed among the distributees of the estate. An executor may be removed from office or face personal liability upon neglecting his or her fiduciary duties.
Contested proceedings, of course, may be quite complex and, naturally, involve substantial attorney's fees and other expenses. In a will contest, the Contestant typically seeks to invalidate a will upon recognized grounds, such as incompetence, undue influence, or fraud. With various limitations, a Contestant may intervene either before or after the Will is actually admitted to probate. If a contest occurs before the Will is admitted to probate, the Court may appoint a temporary administrator to manage the affairs of the estate until the conflict is resolved.
Cases involving a surviving spouse and stepchildren are among the most frequently litigated. While a properly drafted will avoids most of the potential traps for the unwary, there are many cases in which foresight is lacking. Contested issues may include characterization of property as community or separate, reimbursement claims stemming from expenditures made during the marriage to enhance the community or separate property of the Decedent or the surviving spouse, the claim of homestead, exempt property and family allowance, to which the surviving spouse is entitled, by statute, and the means and manner of accomplishing an appropriate valuation and division of the property remaining on hand.
Protracted litigation is often avoided, in these contested cases, by resort to one or more methods of an alternative dispute resolution. Mediation is the most popular method of alternative dispute resolution, in the probate context. The Court will appoint, or the parties will select, a mediator, who then attempts to facilitate a settlement of the controversy. The mediator functions as an impartial observer, not as a judge, deflating the passions and emotions fueling the conflict, while encouraging the parties to engage in constructive, often creative negotiations. The mediation process is a well regarded and highly successful alternative to the resolution of a conflict in the courtroom.
Located in Weatherford Texas probate attorney Gary F. Westenhover is board certified in probate law and estate planning. This firm maintains an active probate litigation practice throughout North Texas, particularly in the following cities and counties: