After the passing of a loved one, figuring out how to appropriately administer their estate can seem like a daunting task. In Texas, there are two tracks for probating or administering a deceased person’s estate: independent and dependent. Before being appointed, most Texas courts require that (1) the proposed personal representative is represented by counsel and (2) that the type of administration has been determined. It is important to speak to an attorney to determine the type of administration that is best under the specific circumstances related to your loved one’s estate.
The key difference between the two types of administrations is the amount of court supervision and oversight. In an independent administration, the court appoints a personal representative to work independently of the court’s supervision. A probate court may approve an independent probate administration if it is specified in a decedent’s will or if all the beneficiaries agree to an independent administration. Once appointed, the personal representative may complete most of the administration tasks without permission from the court. These tasks could include selling property, paying estate expenses, and/or distributing assets to beneficiaries. Upon the conclusion of an independent administration, there is no formal requirement for any closing procedure.
If the required language in a decedent’s will does not specify that the administration should be independent or if the consent of all beneficiaries cannot be obtained, the court will require that the estate be administered via dependent administration. In a dependent administration, the personal representative is required to petition the court in order to complete nearly all administrative tasks such as selling estate property or distributing assets and, further, the personal representative must be bonded by a surety company before they can undertake the role of administrator of the estate. In fact, in many circumstances, the administration cannot proceed without first obtaining court authority.
Conversely, if the required language in a decedent’s will does not specify that the administration should be independent or if the consent of all beneficiaries cannot be obtained, the court will require that the estate be administered via dependent administration. The personal representative must be bonded by a surety company before they can undertake the role of administrator of the estate. Once appointed, the personal representative in a dependent administration, is required to petition the court in order to complete nearly all administrative tasks such as selling estate property or distributing assets In fact, in many circumstances, the administration cannot proceed without first obtaining court authority.
Further, in a dependent administration, the court must review and approve all requests for payment of expenses, including attorney’s fees, requests for distribution, and requests to retain counsel, to just name a few. The personal representative is also required to file an accounting of all actions taken by the personal representative, supported by receipts and bank statements, every year that the administration is open and when the administration is concluded.
Although the dependent probate administration process seems onerous, you may want to opt for a dependent administration to take advantage of its rigorous creditor rules. In a dependent administration, there are very strict rules that creditors must adhere to before they can prosecute their claims against the estate. As a result, it could be advantageous to proceed in a dependent administration if the estate has significant debt.
Because there are many pros and cons of each type of administration, it is important to consult legal counsel to ensure compliance with the Texas Estates Code throughout the probate process. If you need assistance administering the estate of a loved one, please contact the attorneys at BoyarMiller.
Houston law firm BoyarMiller’s probate practice includes seasoned and compassionate trust and estate litigation lawyers that will guide you in estate and trust administration as well as any probate, estate, trust, fiduciary and inheritance litigation. Learn more about our team.
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