Independent vs. Dependent
By: James M. Bright
Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
One of the reasons that the probate process in Texas is far less expensive than in many other jurisdictions is the fact that Texas law provides for and encourages independent administration.
Essentially what this means is that the personal representative of a decedent’s estate may operate independent of the supervision of the Court so long as they are adhering to the dictates set forth in the decedent’s will. If a parcel of property must be sold in order to carry out the testator’s wishes, the executor or administrator will not be required to obtain permission from the Court to sell a particular parcel of property, obtain a bid, accept a bid, attend a closing, all of which might be required in a closely Court-monitored dependent administration. As you can readily see this greatly simplifies the acts required in settling and winding up the estate saving the cost in both time and money of numerous Court appearances. In a dependent administration, acts of the executor/administrator must be monitored and approved by the Court.
There are two basic ways to establish an independent administration:
The testator’s Will may establish that the executor is to act independently. Depending upon the particular circumstance, this designation may also waive the necessity for a bond. This, by far, is the simplest, easiest and most cost effective way to be certain that your executor or administrator has your intended authority to act without court supervision. If you have instructed your attorney to do so, and he/she has prepared your will with this distinction, you need not read the remaining portion of this article because you have already taken the necessary steps required to simplify probate of your will.
If the Will names an executor, but fails to designate that the services of that executor should be independent, they will be dependent unless a way can be found to authorize independent administration. Differing approaches for accomplishing this goal may be found in Texas Probate Code art 145.
The Court may allow independent administration of an estate even if the decedent’s Will did not specify it if certain criteria can be met. These criteria are set forth in art. 145(c) which states in part:
“... all of the distributees of the decedent may agree on the advisability of having an independent administration and collectively designate in the application for probate of the decedent’s will the executor named in the will to serve as independent executor and request in the application that no other action shall be had in the county court in relation to the settlement of the decedent’s estate other that the probating and recording of the decedents will and the return of an inventory, appraisement and list of claims of the decedent’s estate. In such case the county court shall enter an order granting independent administration and appointing the person, firm, or corporation designated in the application as independent executor, unless the county court finds that it would not be in the best interest of the estate to do so.”
Obviously, if there is disagreement between the beneficiaries as to how the administration should be handled, the chances of getting everyone to agree to independent administration becomes much smaller and the unnecessary wasting of estate assets becomes more likely to occur.
Another large impediment to being able to have the executor or administrator serve independently comes from the way the term distributee as utilized in this statute is defined. As visualized by the framers in drafting this statute, distributee will include incapacitated persons (this could be children who are beneficiaries, but are not yet of legal age to give consent). It is possible that an attorney ad litem appointed by the Court could make application on behalf of this minor child or children. A surviving parent, although the natural guardian of a child, does not stand automatically as the legal guardian of the person or estate of such child without a separate legal proceeding.
The most cost effective way to insure that wishes of the testator or testatrix are followed without undue expense of either charging your estate with the cost of a dependent administration or finding a way to appoint an independent executor/administrator is to have an attorney of your choice prepare your will and plan these solutions for you before your death.
James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at208 McCown Street
in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com