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Personal Representative Appointment

A personal representative is a person who is appointed to oversee the administration of the financial affairs of someone who has passed away. This person may be referred to as an “executor” or an “administrator,” depending on the circumstances in which they are appointed.

An executor is a person that the decedent has specifically named in a valid will to oversee the administering of the decedent’s estate. However, if the deceased person has not left a will, or if they have not named an executor, the probate court will designate a personal representative who is accountable to the court. In such a case, the personal representative is called an administrator.

In either case, the role of the personal representative is to take control and inventory of the decedent’s property, pay their outstanding taxes and bills, and ensure that their assets are transferred to the beneficiaries of the estate.

If you need assistance appointing an executor to manage your estate, or if you have been designated as a personal representative for another person’s will, the legal team at Staubus and Randall is here to help you with all aspects of the process. Our experienced Dallas estate planning attorneys can help you make sure that your last wishes, or those of your loved one, are carried out in a manner that aligns with the best interests of you and your family.

If you would like to find out more about how we can help you with your specific situation, call us today at 214-691-3411 or contact us online.

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Who May Serve as a Personal Representative in Texas?

According to Texas State Code, there are two basic requirements for who can serve as personal representatives. The person must be:

  • at least 18 years of age, and
  • of sound mind—that is, not judged by the court to be incapacitated.

There are a few further restrictions to keep in mind. Those who have been convicted of federal or state felonies are ineligible to serve as personal representatives unless they have been pardoned or had all their civil rights restored.

Furthermore, a probate court will reject potential executors who it finds to have a conflict of interest or is otherwise “unsuitable” (see Tex. Est. Code Ann. § 304.003; 931 S.W.2d 607).

You can name a corporation as your executor, provided that it is authorized to act as a fiduciary in Texas. In general, however, it is preferable to name an individual unless you have a particularly large and complex estate or if you do not know an individual you trust enough to serve in this role.

While non-residents of the state of Texas can serve as your personal representative, they will need to appoint someone who lives in-state to serve as resident agent. The in-state agent will accept legal documents on behalf of the estate. For simplification purposes, it is usually better to appoint someone who lives near you, as they may need to handle day-to-day affairs for weeks, months, or even longer.

Who Is Entitled to Preference in the Appointment of a Personal Representative?

Provided the individuals are qualified, the probate court grants Letters Testamentary or Letters of Administration in the following order of preference:

  1. The person the decedent’s will names as executor
  2. The decedent’s surviving spouse
  3. The decedent’s principal devisee
  4. Any devisee of the decedent
  5. The decedent’s next of kin
  6. A creditor of the decedent
  7. Any resident of the county who is of good character and who applies for the letters

In the event that two or more people are equally entitled to serve, the court will appoint the individual who it deems to be most capable of administering the estate effectively. Contact us today if you have pressing questions.

What Are the Personal Representative’s Responsibilities?

Personal representatives are tasked with the following:

  • Obtain a copy of the decedent’s will. Read and understand the instructions therein.
  • File a petition with the court to admit the will to probate.
  • Gather all the decedent’s assets.
  • If applicable, take possession of the decedent’s safe deposit box and contents.
  • Locate all accounts of the deceased by consulting with banks and savings & loans in the area.
  • Check for cash and valuables hidden around the home.
  • Transfer all securities to the name of the executor and continue collecting dividends and interests on behalf of heirs.
  • Take an inventory of all real estate deeds, mortgages, leases, and tax information.
  • Arrange for immediate management of any rental properties.
  • Collect any money owed to the decedent.
  • Inventory and protect all household and personal effects.
  • Collect life insurance proceeds that are payable to the estate.
  • Safeguard all business interests and properties.
  • Arrange for appraisal of assets and sale of assets if appropriate.
  • Pay valid claims against the estate. Reject invalid claims and defend the estate if necessary.
  • Pay any taxes that may be owed.
  • File income tax return for decedent and estate.
  • File federal estate tax returns and state death/inheritance tax returns.
  • Prepare the statement of receipts and disbursements. Pay attorney’s and executor’s fees.

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Is the Personal Representative Entitled to Compensation?

As you can see, the duties of a personal representative can be considerable. Therefore, Texas law entitles a personal representative to 5% of all the amounts that they actually receive or payout in cash, not to exceed 5% of the estate’s gross value. The calculation does not include the cash that is paid out to heirs or receiving funds that were on hand or stored in a financial institution at the time of the decedent’s death. Also excluded in this calculation are assets with named beneficiaries, such as IRAs.

If the personal representative is involved in managing a business during probate, or if the usual calculations would generate a particularly low fee, the court may allow additional compensation.

Contact a Dallas Estate Planning Attorney Today

Considering the importance of the personal representative’s role, it is important that you have the guidance of someone who has substantial experience with estate matters when appointing an executor or when embarking on the duties of an administrator.

The seasoned Texas estate planning attorneys at Staubus and Randall have the knowledge and skill necessary to help you through the process. We will ensure your best interests and those of your loved ones are protected every step of the way.

If you would like more information about how Staubus and Randall can help you with your estate planning matters, call us today at 214-691-3411 to schedule a free consultation. We look forward to putting our experience to work for you.

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Frequent Asked Questions

Estate planning is the arrangement of transferring a person’s assets and property after their death. The estate plan you create may consist of cars, homes, life insurance, assets, real estate, jewelry, and other types of personal property. When you create an estate plan, you must sign it in front of a notary public.

Even if you don’t have many assets, it’s still a good idea to create an estate plan, so that loved ones won’t argue over who gets what when you pass away. Your estate plan will ensure everything you own goes to specified parties and doesn’t end up in the wrong hands.

Typically, those with extensive or complex assets will hire an estate planning lawyer to help draft their will. Many use a will to divide personal property, such as a home, among their family members. When you’re preparing your will, you need to make sure you meet specific legal requirements. Having a witness present when you’re signing the documents is crucial.

Of course, it’s possible to draft a will on your own, especially if you don’t have significant assets to leave behind. However, hiring an estate planning lawyer can ensure that your documents comply with current law, and that everything gets divided among your family the way you want, so there’s no confusion.

A power of attorney is a legal document giving power to one person (an agent or attorney-in-fact) to act on your behalf if you become incapacitated. When you create a power of attorney, you can designate a specific person and decide how much authority they will have.

An attorney-in-fact would maintain records of all decisions made on your behalf. Some decisions could include recommending a guardian for dependents or minor children and financial decisions. They could also make decisions about healthcare.

If you allow your power of attorney the authority to stop, give, or withhold medical treatment, you can leave instructions on which services you want and don’t want, when to stop life-saving measures, and when to cease specific treatments.

It’s devastating to lose a loved one, and the last thing anyone wants to do is handle their affairs. However, you must ensure property and assets go to the right people, and everyone follows their final wishes.

The first thing you should do when your loved one passes away is to request a copy of a legal pronouncement of death. You should also notify close friends and family of their death. If necessary, arrange for the supervision of dependents or minor children. You’ll also be able to find instructions on how to move forward with their plans from their will or trust.

A trust is a document that places your assets into a trust fund to transfer to a beneficiary upon your death. Most people will create a trust to speed up the process of settling their estate. You can also protect your assets, reduce taxes, and prevent probate.

With a trust, you’re not only able to control who your assets go to but also how the money gets disbursed. This is especially beneficial if the person you’re leaving money to doesn’t know how to save and spend properly. You can create a payment schedule with a specified amount paid to them on a weekly or monthly basis, rather than as a lump sum.

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What Our Clients Say

"I recently had the occasion to hire Mr. Staubus for a hotly contested Guardianship matter. Mr. Staubus brought a rare combination of effectiveness, reasonableness and understanding of the human element involved. Mr. Staubus handled all things in a calm, highly competent, effective and reasonable way. It could not have been as easy as he made it seem. He's a credit to the Bar."

Jody

"Before retaining the guidance of the Staubus & Randall firm, I was at my wit's end trying to close an uncle's estate as a co-executor. In addition to dealing with difficult heirs, I had other pressing business issues coming up immediately on estate land in the middle of the Eagleford Shale including dealings with pipeline, seismic, oil & gas, and construction companies. The local bank also refused to give me access to information relating to the estate. This quickly became the most stressful and desperate time in my life...and then I found Joseph Legere who truly became my guardian angel. He was able to get all issues resolved efficiently and the estate fully closed. His professionalism, immense legal knowledge on a wide variety of topics, and amazing communication skills took the burdens off of me and quickly got closure. I am forever indebted to this firm for giving me my life back."

Martha

"Without exception, the legal service, professional attitude, prompt communication of your firm and your legal knowledge is second to none. I only wish I had an attorney here in Boston that could hold a candle to your experience and expertise. Working with you has been a pleasure, but even more, has made me believe that there are knowledgeable attorneys that do care about doing a good job. Thank you Keith! You may not truly understand how much of an impact you are having on peoples lives, but for me, you have helped change my life. As I begin making my dreams come true I can't help but remember none of this would be possible without you."

Joann

"Keith Staubus and Julie Blankenship and their team represented me in a jury trial in the probate court where the ownership of the business which I had worked hard to build was at stake. They successfully fought to preserve my business and my professional reputation, working masterfully to gain the support of the jury. I would not hesitate to hire them again in any bet-the-company litigation.”

Karen

"I have required legal representation twice in my life in two separate will contests. Both times I sought assistance from Keith Staubus and Staubus/Randall. Their service, approach, and determination to obtain results exceeded the other attorneys in each case. Mr. Staubus has always come across as genuine while being direct. He gets the process done in a timely manner with results. I will certainly use him again when and if any new challenges arise.”

David

"After my husband's death, I was devastated by having to defend against a vicious dispute over my husband's estate. Julie Blankenship and Keith Staubus made me feel very comfortable in this distressing situation. They were very tough and did an excellent job for me in obtaining a summary judgment in my favor without a full jury trial. I was glad to have them and Diane Walker in my corner to help me achieve an excellent result - I won! If I ever had to go back to probate court, I would hire them again.” - (will and trust construction case)

Flo

"If you need intervention for someone you love but don't know where to turn or who to turn to, Julie Blankenship and Keith Staubus helped me through the most difficult and stressful time in my life with a much loved family member. I now believe that good will triumph over evil. They fought for what was right, and good prevailed." (contested guardianship and will contest)

Janet

"As a professional money manager, I have used Ryan Randall's estate planning services both personally and for my clients. Ryan has exhibited three critical attributes in his work with me: (1) high intellectual capacity, (2) exceptional thoroughness, and (3) a total commitment to integrity. In today's litigious world, it can be quite costly not to "get things done right.” An added bonus to us was that we found one of the nicest people we could imagine.”

John

"I was represented by Keith Staubus as an income beneficiary in a lawsuit with the trustee of a family trust. Utilizing the expertise of a forensic accountant and his own trust expertise, Keith was able to negotiate a judicial modification of the trust providing for the buyout of my income interest for a substantial lump sum payment out of the trust, resulting in a win-win situation for all of the parties. I highly recommend Staubus/Randall for any trust disputes and trust modification actions."

Kathy

"I have been a wealth management specialist and retirement plan consultant with the Dallas/Fort Worth financial community for over 20 years. I have engaged Ryan Randall to work with a number of my best clients over the years, including business owners, professionals and families. My clients always appreciate Ryan’s straightforward approach to estate planning, asset protection planning and business succession planning. He makes even the most sophisticated estate planning strategies understandable."

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What planning we can sue for?

When a loved one dies, and the execution of their estate plan begins, many disputes can arise among family members. Despite the decedent's creation of a good estate plan, problems can occur if a power of attorney doesn’t perform their duties or someone’s unhappy with the division and distribution of assets.

The most common disputes estate lawyers see include:

Bad fiduciary selection

A majority of disputes arise when the power of attorney, executor, or trustee doesn’t correctly perform their duties when their loved one dies. That failure is called a breach of fiduciary duty. Common breaches include:

  • Failure to file tax returns
  • Using assets for personal benefit
  • Failure to provide tax and accounting information to beneficiaries
  • Dividing and distributing assets improperly

To avoid these issues, you should ensure your loved one chooses the right fiduciary during the process of planning their estate. Careful selection can ensure there’s no breach of duty, and they act in the deceased’s best interest.

Will or Trust Contest

When someone contests a trust or will, it’s either because they don’t think it’s legally valid or believe someone influenced the creator into making decisions they didn’t want to make.

To be legal, the creator of the will must sign under specific circumstances and in a particular manner. In Texas, the person must meet the following requirements:

  • Be at least 18 years of age;
  • Be of sound mind, meaning they’re able to make decisions and understand the consequences of a will;
  • Sign the will themselves;
  • Signature of at least two witnesses; and
  • List at least one beneficiary.

Improper execution of a will is less common than undue influence. Many will argue that the creator of the trust or will made their decisions because of another party. The person accused of undue influence could be a friend, caregiver, professional advisor, or family member.

Distribution of property

Sometimes conflicts will arise when the creator of a will or trust intends to leave someone their property but dies before they can change their estate plan to reflect that decision. Other instances create conflicts when beneficiaries believe the distribution of property is unfair or inequitable.

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How should I handle estate law disputes?

If you come across the disputes listed above or any other types of disputes, there are options for resolving them. The remedy you choose will depend on the particular conflict and the people involved.

  • Remove the executor: If there’s a problem with the executor of the estate, you might need to replace or remove them. Finding a replacement can be difficult, especially finding one that all parties are happy with. However, it’s the best decision to ensure everyone is satisfied with how the estate gets handled. The best choice would be a neutral third party who doesn’t hold any biases.
  • Litigation: To litigate a dispute, you must be an inheritor and have sufficient grounds for pursuing a lawsuit. Most people will litigate if they believe there was an improper distribution of the property or suffered a financial loss because someone mismanaged the estate.
  • Mediation: This is the best option for individuals who want to settle the issues amicably, timely, and inexpensively. Mediations usually bring about quick results and cost less than litigation. You also have complete control over the outcome because there isn’t a judge or jury involved.

The Firm

The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.

Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.

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