We have previously covered dependent administration. Independent administration is the other choice in the dependent-independent dichotomy. The term “independent administration” refers to an estate being administered by the personal representative with little supervision by the court.
With an independent administration, the personal representative’s powers in an independent administrator are broad. Texas Estates Code Sec. 402.002 provides that “any action that a personal representative subject to court supervision may take with or without a court order may be taken by an independent executor without a court order.” This allows the independent administrator to make most of the major decisions for the estate.
Independent administration is the preferred and most common method for probating estates in Texas. Independent administration can save time and cost substantially less.
Independent administration can only be used if authorized in a valid will or, in the absence of a will, if all of the heirs have been identified (in a proceeding to declare heirship) and if all of the heirs consent to independent administration. The consent requirement can be problematic when there is no will, as all of the heirs may not want independent administration or they may not trust the person who is to be the independent administrator.
It should also be noted that in the absence of a will, the probate court may not grant an independent administration if there are minor heirs and an administration is needed.
There are circumstances where an independent administration is not advisable. This includes situations where:
The personal representatives in these cases may prefer to have the court make the decisions via a dependent administration to avoid liability or protracted litigation.
If there is a will and the will provides for independent administration, the executor named in the will generally serves as the independent administrator. The language will typically read something like this:
I appoint _______________________ as independent executor of my estate to serve without bond, and I direct that no other action shall be had in the probate court in relation to the settlement of the person’s estate than the probating and recording of the will and the return of any required inventory, appraisal, and list of claims of the person’s estate.
This is authorization in a will is specifically authorized by Texas Estates Code Sec. 401.001. The will may also reference “no court action,” “independent,” “least possible court involvement,” etc. to indicate that independent administration is desired.
It should also be noted that many wills make the first-named executor independent, but does not make alternate executors independent (whether intentionally or not). If the first-named executor does not serve in this situation, then it may not be possible to have an independent administration.
A will may also specifically provide that there shall be no independent administration. The probate courts will generally follow the decedent’s wish that there be no independent administration.
If the will is silent on the issue or if the decedent died without a will, the decedent’s heirs can consent to the request for an independent administration. The probate court will generally grant these requests, unless there is some reason why an independent administration is not in the estate’s best interest.
Once the independent-dependent administration issue is decided, one must also consider who can and should serve as the personal representative. That brings us to our next topic. Click here to continue reading. >>>>
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