Perhaps you already know what an executor does, and perhaps you also know that you’ve been named executor of, for example, your father’s estate. When your father dies, you take his will to the bank and ask for control of his accounts. You may be surprised when the bank rejects you and asks you to return when you have papers from the court. Following our last post, an overview of the duties of executors in Texas, we will now address the procedure to officially become an executor. If you are in need of assistance then contact us today to speak with a Dallas probate lawyer.
Most Texans misunderstand how executors are appointed. They believe that when a person makes a will, that person appoints an executor to manage their estate. That’s not actually the way it works. Probate courts appoint executors, not the deceased person. A deceased person’s will functions as a message to the court, which tells the judge please appoint this person that I trust to manage my estate. In practice, judges usually do appoint the person named in the will as the executor, but there are many exceptions.
The most important thing to remember is that you cannot act as executor in Texas until a probate court allows you to take this position. The first step to becoming executor is filing an application to probate will with a Texas probate court. For the purposes of this blog series, we will assume that the will is valid. Please see our previous series on inheritance disputes in Texas for a discussion on challenges to an invalid will.
The clerks of the probate court will post a public notice after you file your application. Then, after a waiting period (depending on when the notice was posted, about 10 to 17 days), you may schedule a hearing with the court to probate the will and appoint an executor. If you gave the original signed copy of the will to the probate court, you don’t need to notify anyone particular, and you can rely on the public notice posted by the clerks.
The applicant and executor will then attend the hearing on the probate of the will. The court receives testimony that the deceased person is actually deceased, and that their will is valid. Then, the court asks the proposed executor to take an oath to faithfully perform his or her duties. In certain circumstances, the court may ask the executor to post a bond, which is a monetary security that incentivizes executors to properly perform their duties. The bond may take the form of (1) cash; (2) a corporate surety, which functions like an insurance policy; or (3) a simple promise to pay damages if the executor fails to comply with their obligations. The court then enters an order called an order admitting will to probate and appointing executor.
There is one more step to becoming an executor in Texas—you must obtain letters testamentary. The purpose of this document, which boasts the court’s seal of authenticity, is to prove that the executor has authority to manage an estate. The clerks of a probate court will issue letters testamentary to the executor only after the probate court entered its order, the executor took his or her oath, and, if necessary, the executor posted a bond.
Congratulations! Now, with your letters testamentary, you are officially appointed as executor, and you may act on behalf of the estate. The process of obtaining letters testamentary often runs smoothly, but there are several ways to disrupt this process and prevent an executor from being appointed. Our next post will address challenges to the appointment of an executor.
Our Dallas probate administration attorneys help clients probate wills and become the executor of estates in the DFW area and throughout Texas. Almost every probate court requires that executors are represented by legal counsel, so if you need to become an executor, please call us for assistance. Our offices serve executors throughout the state, including in Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.