If there is a will, the executor named in the will is presumed to be responsible to handle the probate process. They have the priority to do so. Sometimes, you can run into an executor who is kind of shady, and who isn’t moving forward to court. Once a period of time has passed and the named executor has not proceeded in court, one of the heirs can petition with the court to ask the court to replace the named executor.
The people that can ask for an executor’s powers include a spouse, children, parents, and siblings. The list goes all the way down to the next of kin for the probate to occur.
Can There Be More Than One Person Designated As A Personal Representative To Handle The Probate Process?
In the probate process, there can be more than one person designated as a personal representative. However, that is highly frowned upon. For instance, if you have two children who are your heirs, and they don’t get along, naming them co-executors is probably not a good idea. It might make them feel equal, but it still might be best to find a third party to take care of things. Logistically, if you have two people with power, two executors or two administrators, you have to get them both to sign off. If somebody is not local, you would have to figure out schedules that would work to get them to sign things that are needed. It doubles the efforts.
Traditionally, the elder sibling is named executor or personal representative. However, other times they are not. The personal representative should be whoever you think is going to be the most fair and able to handle the responsibility. They should be someone who understands what is going on to make sure that things are being done right instead of emotionally.
Is It Necessary For The Personal Representative To Live In The Deceased Person’s State?
It is not necessary for the personal representative to live in the deceased person’s state. It’s common for a personal representative to live in a different state. The only difference is that we would have to ship things off to get signed or have it signed off there somehow, and then get it shipped back. In Texas, however, you have to name a registered agent. If you do not reside in Texas, normally our clients name our firm. If somebody wants to sue you or the estate in terms of estate matters, they would serve your registered agent instead of having to find you in a different state.
What Are The Main Duties Of The Personal Representative In The Probate Process?
The personal representative’s main responsibility is to make sure that everything is handled properly, ethically, and morally as best they can. They cannot play favorites. If the will says everybody gets a third, they can’t appease one side over the other.
One of the biggest things we find is that people don’t understand that the probate process includes creditors. Normally, we don’t care about the creditors, but there is a process where if a creditor files a claim and it is either denied or ignored, they can file suit in probate to try to prove their claim. If they prove their claim, it has to be paid. If the assets are distributed to the heirs and a creditor proves their claim, there could be a problem getting that money back from the heir to pay the creditor. If too much time has elapsed, the money could be gone. Consequently, the administrator has a problem because they can be personally held liable.
Getting the heirs to understand that they don’t get the money that they want is a big issue with them. The executor or administrator has the right to hold on to the money for as long as needed. They have a minimal right of a year or more before you can complain about it in court.
Should I Avoid Probate If Possible? If So, How?
When it comes to estate planning, avoiding probate is often the number one factor people try to decide on first. As long as we are confident that there isn’t going to be a problem between the heirs, bypassing probate could be an option. You can save them money by avoiding probate. If we can bypass the $3,000 or $4,000 fee, great. However, some issues can still arise. For instance, if we do a transfer on death deed to a house and give it to two siblings, one sibling might want to live there while the other sibling might want to sell. That could be an issue which could lead to costly litigation. Whereas, if we plan for probate knowing that is the situation, we can indicate in the will that the one sibling can live there, but they would need to pay rent to the other sibling. It can be whatever the client wants to happen. We can give that administrator that power.
Let’s say the testator wants the house sold. He or she can appoint an executor who has the power to get that house sold. The heirs can’t do or say anything about that. And so, there are times in which the probate process is necessary because of the heirs. Another option is to do a hybrid. You can designate part of the assets to bypass probate, such as bank accounts to give people money to pay for the probate process or funeral expenses or if the heirs are agreeable and you are sure the relationship between the heirs will stay that way or if there is only one heir then bypassing probate may be something to consider.
For more information on Handling The Probate Process In Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 829-6100 today.