When someone dies in Texas, their property is disposed of under the state's estate laws. All of the probate property that an individual owns when they die becomes part of their Texas probate estate.
Although probate is a court-supervised process, the probate judge appoints an executor to shepherd the estate of the deceased person through the probate process. This is usually the person named as executor in the will. That person can decline to serve before they are granted letters testamentary or letters of administration, or they can resign after getting letters and starting to serve.
Probate Property in Texas
When a person dies in Texas leaving an estate of over $75,000, all of their probate property becomes part of the probate estate. The steps in the procedure are different depending on whether there is a will, but, in all cases, the deceased's probate property is all that is at issue.
This generally includes all of the cash, bank accounts, retirement accounts, real estate and personal property owned separately by the deceased.
Assets Excluded From the Probate Process
Some assets are not included in the probate estate. These are assets the deceased owned jointly with one or more others having right of survivorship. That means that as soon as one owner dies, their interest in the property passes to the other owners who survive them.
Similarly, financial accounts and insurance policies that have a named beneficiary—like life insurance policies and payable-on-death (POD) investment accounts—pass directly to the named beneficiary when the person dies. This happens automatically and outside of probate.
Exceptions for Small Estates
A decedent’s estate that is worth less than $75,000 need not go to probate. All that is required is for a relative or other interested person to file a small estate affidavit. If the estate has probate assets of over $75,000, a probate case must be opened in Texas.
Judicial Overview of Probate
Probate is a judicially supervised procedure in which all issues about the decedent's will, inheritance and property matters are resolved by the court.
The probate judge in Texas assigned to an estate reviews and adjudicates all issues of that estate. But while the judge makes decisions about the law and facts, another person is appointed to take the many steps necessary to steer the estate through probate.
This person is called the executor, if there was a valid will, or an administrator, if there was no valid will. They may also be termed, generally, the personal representative.
Who Is Executor of Estate in Texas?
An adult living in Texas is entitled to name in their will the person they wish to serve as the executor of their estate. This is usually a part of the estate planning process. Alternatively, the testator can give a named individual the right to appoint someone to administer the estate.
The judge is in charge of appointing the personal representative, but anyone named in the will is given priority under Texas law. The court must consider qualified individuals in this order:
- Person nominated executor in the decedent’s will or person named as administrator by someone authorized to do so in the will.
- Decedent’s surviving spouse.
- Principal beneficiary of the decedent.
- Beneficiary of the decedent.
- Next of kin of the decedent.
- Creditor of the decedent.
People Disqualified as Executors
The court must first make certain that the person considered for executor is qualified. Persons are disqualified to be executors if they are:
- Felon convicted in any state or federal court unless officially pardoned.
- Nonresident of the state who is a natural person or corporation and has not been appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate or has not filed that appointment with the court.
- Corporation not authorized to act as a fiduciary in this state.
- Person whom the court finds unsuitable.
Declining Appointment as Executor
A person appointed as executor in the decedent's will or someone proposed by the court is not obligated to accept this appointment. They can decline the appointment simply by filing a letter with the court when the probate process is initiated.
The court will then select another person to serve as personal representative, using the Texas Estates Code statute that assigns priorities as a guide. For example, if the person named in the will declines, the deceased's surviving spouse will be next in line for appointment.
Resigning as Executor in Texas
The process for declining an appointment as executor in Texas is quite straightforward since it occurs before the issuance of the letters testamentary that make the person the officially named executor. It is more complicated to resign once appointed, and probate of the will has begun.
The appointed executor must submit a written application to the probate court stating their desire to resign. Together with this, the executor must file "a complete and verified exhibit and final account showing the true condition of the estate entrusted to the representative’s care." The exhibit and final account show the court and replacement executor the current status of the estate.
Court Hearing Date for Resignation
When the court receives the application and final account, the judge sets a time and date for the hearing. This is posted in the courthouse to notify people of the hearing on the final account and the executor resignation.
In addition, all interested persons will be notified of the hearing. They cannot contest the application to resign, but they can contest the final account of the estate. The judge determines whether the executor complied with the law when handling the estate.
No Renunciation of Executorship Until Certain Matters Are Complete
Under Texas law, a personal representative applying to resign may not be discharged until certain matters have been accomplished, including:
- Resignation application has been heard.
- Exhibit and final account required under Estate Code Section 361.001 (Resignation Application) have been examined, settled and approved.
- Applicant has satisfied the court that they have delivered any estate property remaining in the applicant’s possession and complied with all lawful orders of the court with relation to the applicant’s trust as representative.
Once the court signs off on the final account, it issues an order of approval of the resignation. The order also requires that the remaining estate be transferred to whomever is entitled to receive it. The judge will then grant a final discharge to the executor, which means the court accepts the executor's resignation.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.