Independent Executor

The form of probate most familiar to clients is the probate of the will with the appointment of an executor of will. What some refer to as an Executor will. This provides for probate of a will with full administration of the estate by the executor of the will, the person nominated by the Decedent as executor.

The majority of wills filed in Texas contain language similar to the following, “I appoint [Name] to be the Independent Executor of this will to serve without bond. My Independent Executor shall act independently of any court, and I direct that no action shall be had in the county or other probate court in relation to the settlement of my estate other than the probating and recording of this, my Last Will and Testament, and the return of an inventory, appraisement and list of claims of my estate. This language creates an independent administration of the Decedent’s estate pursuant to Tex. Est. Code §401.001 (formerly 145(b) of the TPC.) No specific language is required to make the administration independent. Any language is sufficient if it indicates that the estate administration is to be free of court supervision.

The purpose of an independent administration is to permit the executor to administer the estate and distribute its assets free of judicial supervision with a minimum of cost and delay.

Dependent Executor

If a will does not state that the executor is to be independent, then he will be a dependent executor. A dependent executor is not normally desirable because he must get court approval for everything that he does. This takes time and money. There are situations, however, where an executor might want to be a dependent rather than an independent executor. If there is a conflict among the decedent’s heirs, the executor can protect himself from problems by having a hearing and having the judge rule on everything that he does. This is not normally a problem and most people will want an independent executor.

Time Limits

When the judge signs the order admitting the will to probate, the statute of limitations start to run for those who oppose the will to challenge the will by filing a will contest. If a person is contesting the will, he must contest it within two years of the date the judge admits the will to probate. It is better practice to file a will contest before the hearing where the judge admits the will to probate. You can also file a will contest before someone else even files the will for probate.

With certain exceptions, a will has to be filed for probate within four years of the death of the testator. A will contest must be filed within two years of the date the will was admitted to probate. That is, two years from the date that the judge signed the order admitting the will to probate.

What is Probate in Texas

Another article explains What is Probate in Texas.

Several types of probate are available when a person dies depending on whether they have a will or not.

If the Decedent did have a Will:

1. Probate of a Will and Appointment of an Independent or Dependent Executor.
2. Probate of a Will and Appointment of an Independent or Dependent Administrator with Will Annexed.
3. Probate of a Will as a Muniment of Title.
4. Probate of Will and Order of No Administration.

If the Decedent did not have a will (Intestate)

1. Small Estate Affidavit.
2. Declaration of Heirship.
3. Affidavit of Heirship.
4. Family Settlement Agreements.

Which procedure to choose will be a decision that the family makes in consultation with the estate attorney who is going to handle the probate.

A problem that comes up from time to time is the issue of a lost will. Lost wills are problems because there is a presumption that when a will cannot be found, the testator revoked the will by destroying it. One of the methods by which a will can be revoked is by destroying the original copy of the will. When a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises. In order to overcome that presumption, the proponent of the will must prove that the testator continued to have affection for the chief

beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent was dissatisfied with the will or had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.

In order to probate a lost will, the proponent of the will has to overcome that presumption of revocation as well as prove the contents of the lost will.

The Texas probate code has a section that deals specifically with lost wills and what is required to prove them up (TEC §256.156). A proponent of a written will which cannot be produced in court must prove:

1. the requirements for a valid written will to be admitted to probate,e.g.what you would normally have to prove if the will was produced including that it was not revoked,
2. the cause of the written will’s non-production and that such cause satisfies the court that the will cannot be produced through reasonable diligence, and
3. the contents of the will must be substantially proved by a credible witness who has read the will or a copy of the will, heard it read, or can identify a copy of the will.

If the proponent of the will proves the three things above, the court will admit a loss will to probate. 324 S.W.3d 257.

The Probate Judge can correct or reform a will or trust if it is clear that “an error was caused by a scrivener’s or draftsman’s failure to embody the true agreement of the parties in a written instrument.” So, the question always is – does the will or trust show the true agreement of the parties or did the scrivener or draftsman (the attorney) make a mistake.

A 2019 case showed the problems that the courts can encounter. A man and woman got married. The wife had a child “Edna” who the husband adopted. They later had two more children, Ignacio and Esperanza. They created a trust through their attorney. In the trust, they said we have two “children” and named Ignacio and Esperanza. The problem was that that definition was the only place in the trust where they used the word “children.” The rest of the trust disposing of their property refered to their “descendants”.

Ignacio and Esperanza asked the court to reform the trust to change “descendants” to “children” and rule that Edna was not included. The trial court did that – meaning that Edna would not inherit. Edna appealed.

The appeals court reversed. Their is a high burden on someone wanting the court to reform a will or trust and Ignacio and Esperanza did not meet that burden.

We find that Ignacio, Jr., and Esperanza’s summary judgment evidence failed to carry their burden to establish their entitlement to judgment as a matter of law. The Trust clearly contained scrivener’s errors. However, the question of Ignacio’s and Myra’s intent was not shown by clear and convincing evidence as a matter of law. Derer (the attorney) did not remember meeting with Ignacio and Myra, had “no direct memory of them,” and could not recall whether they informed him of Edna’s existence. Based on this testimony, which we view in the light most favorable to Edna, it is quite possible that the scrivener’s error occurred in the identification article and should have included Edna. The identification article stated Ignacio and Myra only had two children. This was a scrivener’s mistake of fact. It is undisputed that Edna is Myra’s natural child and that she was adopted by Ignacio.

While a will or trust can be reformed by the probate court, putting on the case for reformation must be done in the proper way.