Top 5 Mistakes Executors Make In Texas Probate (And How To Avoid Them)

In this article, you will discover:

• The consequences of failing to file a will in Texas probate properly.
• The time commitment necessary to be an executor in Texas probate.
• The legal consequences of failing to notify creditors during probate.

How Can Failing To Properly File A Will Delay The Probate Process?

You have four years from the date of death to open a probate. After that, if you haven’t done so, because you didn’t think you needed to or you didn’t want to, you must prove to the court you’re not at fault. Otherwise, the will doesn’t come into probate.

This situation is common among spouses. Texas is a community property state. As a result, many people assume that, because they’re the spouse, they get everything. They don’t see the point of going through probate. However, in many cases, you’re required to file.

Especially in a second marriage, without a will, the spouse does not inherit. You may assume you did and not bother to file a probate. However, if you don’t do it within four years, you end up getting nothing.

You need to speak to a probate attorney within those four years to consider your options. Maybe you don’t need to probate. Maybe there’s a cheaper or less complicated process you can go through, but you don’t want to relinquish your rights.

Why Do Executors Often Underestimate The Time Commitment In Texas Probate Cases?

Being the attorney on a probate is much less involved than being the executor, depending on the estate. There are hours spent on hold with banks, obtaining medallions to transfer securities, and the emotional toll of dealing with the beneficiaries. Sometimes, you have beneficiaries who don’t think the process is fair and others who want to micromanage everything and disagree with how the process is being done.

Being an executor is a lot of work and time commitment, and most people don’t adequately consider executor compensation. Because the executor is family, many people don’t believe they should be compensated. However, the process can take hundreds of hours: cleaning out someone’s house, handling the estate sale, selling the property and dealing with creditors.

Attorney Farren Sheehan is a skilled lawyer based in Pflugerville, Texas, who has helped numerous clients like you navigate the intricacies of estate planning law. With decades of experience, she is prepared to assist you in avoiding the common pitfalls and mistakes typically made by executors in the exercise of their fiduciary duties.

Still have questions? Ready to get started? Contact Sheehan Law PLLC today to schedule an initial consultation.

What Happens If An Executor Fails To Notify Creditors In A Probate Estate?

The creditor process is complex. You have secured creditors, those with a lien on a house or car, and also unsecured creditors, such as credit card accounts.

Texas has a “priority of claims,” where debts are paid in a specific order, the highest being probate expenses, expenses of the last illness and burial expenses. Secured creditors are next in line, and unsecured creditors are last.

The process begins by sending a letter to all known creditors informing them that you’ve opened the estate. If someone has a claim against this estate, they must bring it within 120 days. Without a timeline, this process would never end. You could distribute everything in the estate, and three years later, medical bills could materialize when there’s no more money left.

Texas law requires creditors to present their claim in a specific format. They either have to file it with the court (more common in dependent administrations) or deliver it to the executor or the executor’s attorney, by hand or by certified mail.

If proper notice in the appropriate format isn’t received within 120 days, you can send a letter to the creditor informing them their claim is barred and they can no longer collect.

The executor cannot ignore creditor claims and simply distribute the estate’s assets. If a creditor properly files a claim, it must be either approved or disapproved. If the claim is approved, the debt is paid; if it’s disapproved, it’s not paid. If a claim is wrongfully disallowed or ignored, the creditor can sue and hold the executor personally liable for distributing estate assets without first paying the debt.

Why Is It Important For An Executor To Keep Detailed Records?

Keeping detailed records is essential in the event of a conflict arising or if something goes wrong. There’s always a chance an accounting will be demanded, a detailed record of every penny that goes in and out of the estate.

If you don’t keep detailed records and receipts, you may not be able to answer questions about specific expenses in an estate dispute at a later time. Being the executor and keeping records is not for the disorganized at heart. If you’re considering someone who might not be organized, choose someone else instead.

Notes From The Field: Helping Executors Avoid Unknowingly Mismanaging An Estate

I’ve had clients who genuinely thought they were doing the right thing, but who were, in fact, overstepping their bounds as executors. For example, they may, with the best intentions, have been reluctant to give money or an asset to a beneficiary they feared would waste it or fail to take care of it. However, that’s not their job.

An executor’s job is to distribute assets according to the will. If you aren’t following the will, you can be found to be in breach of your fiduciary duties, removed from your position, and even held liable.

There are occasionally bad actors who take property or fail to be honest, but our clients are typically transparent and take their responsibilities seriously. We work with them to explain the law and, whenever possible, encourage transparency.

Specifically, we encourage clients to be transparent about what’s in the estate and what’s going on. When they’re not, it gives rise to feelings of distrust among beneficiaries. That’s where things fall apart, and someone may hire their own lawyer in preparation for a battle. That can be avoided if you demonstrate you’re not hiding anything.

Still Have Questions? Ready To Get Started?

For more information on common Texas probate executor mistakes, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 234-7913 today.