Who Will the Court Appoint as Guardian for Your Children?
If you die without a Will that appoints a guardian for your children, it will be left up to the Court . The Court will consider what is in the child’s best interest. It may not be who you would want appointed as your child’s guardian. There are certain people who are ineligible to be appointed as guardian according to the Texas Probate Code. These include: A minor; People whose conduct is notoriously inappropriate; An incapacitated person; A person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward; A person indebted to the ward unless the person pays the debt before appointment; A person asserting a claim adverse to the proposed ward or the proposed ward’s property, real or personal; A person who because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate; A person, institution, or corporation found unsuitable by the court; A person disqualified in a declaration made by the ward prior to incapacity.
Continue ReadingHave you recently lost a loved one? What are the next steps?
Texas has simplified the probate process that allows certain executors to serve independently of the Court’s supervision. This allows the probate process to move quickly and efficiently in a process called independent administration. How does an Executor become “independent”? An executor can be independent if — 1) the Decedent left a Will in which he specifically states that his executor should be independent, or 2) if the Decedent died without a Will or his Will did not allow for the independent executor, all of the heirs or beneficiaries under the Will can agree to allow the Executor to serve as the Independent Executor. What are the Benefits of an Independent administration? The independent executor does not have to post a bond and does not have to obtain the Court’s approval prior to undertaking the duties. What are the responsibilities of the independent executor? The independent executor’s responsibilities are 1) collect the assets, 2) pay off any debts, and 3) distribute the assets according to the Will or according to Texas law if the Decedent did not leave a Will. As part of this process, the independent executor is also required to satisfy a couple of requirements to the Court — 1) to publish notice to potential creditors in a newspaper and 2) to file an inventory with the Court showing the assets of the estate. When do I need to probate the will? It is advisable to initiate the probate process as soon after someone’s death as possible, it must be done within 4 years of their death, or the process by which their estate is divided becomes much more complex. When is the Independent administration not a good idea? Estates with high debts may choose a dependent executor rather than an independent, simply because it may mean that the creditors have a harder time obtaining payment. An executor may prefer to be dependent if fights among the heirs of the Estate are anticipated. In those situations, the executor may prefer to have the Court approve each and every action the administrator undertakes so that later disputes among the family members can be resolved through rulings by the Court rather than litigation against the executor.
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