The Personal Representative

Selecting The Personal Representative

Specialized knowledge, training or experience is not required to serve as a personal representative in a Texas probate.  However, the person needs to have the basic skills necessary to carry out these tasks, the time available to do so, and a willingness to do so.

As a reminder and as noted in the introduction to this guide, we use the term “personal representative” interchangeably to refer to the executor (if there is a will) or the administrator (if there is no will) as a matter of convenience for readers.  Court documents should be prepared using the more accurate term executor or administrator rather than the informal term personal representative.

Persons Eligible to Serve

While there are no specific qualifications for serving as a personal representative in Texas, there are rules for who can serve and rules that disqualify certain people from serving.  The probate court will grant letters testamentary or of administration to qualified persons in the following order:

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

When two or more persons are equally entitled, the court will appoint the person who, in the judgment of the court, is most likely to be able to administer the estate effectively.

There are also several instances where people cannot serve.  Texas law provides that the following persons are disqualified from being appointed as personal representatives:

  1. Minors and incapacitated persons
  2. Persons convicted of a felony
  3. Those who are not individuals, such as corporations
  4. Those who are unsuitable, such as persons who have an adverse interest in the estate or who would bring discord to the estate administration

The probate courts may also refuse to appoint others who are deemed unfit to serve.

Waiver of Right to Serve

Just because a person is named in a will or has the first priority right to serve, they do not have to serve if they do not want to.  Any person who has priority to serve as personal representative may waive that right by filing a written waiver in court.

The person has the ability to name another qualified person to serve in their place.  The probate court may appoint that person to the exclusion of any other person who does not have priority equal to the designated person.  The waiver of the right to serve only binds the person making the waiver and any persons who have lower priority to serve. If there is more than one person in the same degree of kinship in the priority list, both must join in the waiver or the other persons in this class may assert their right to serve.

If there is a waiver, the probate application has to specify why first-named executor in the will or persons with higher priority are opting not to serve.  The probate courts generally require a notarized waiver in the file before they will consider the probate application. The probate courts may also require other evidence:

  1. If the person is not serving because they are dead, the probate courts may also require a copy of the person’s death certificate to be on file with the court.  If the death certificate is not available, the probate court may accept the cause number and jurisdiction where the person died or a published obituary.
  2. If the person is not able to serve as they have a felony criminal record, the sentencing order or other proof of conviction should be provided to the court.
  3. If the person is not able to serve as they are incapacitated, a guardianship cause number or letters from one or two doctors may need to be provided to the court.
  4. If the person is not able to serve as they are divorced from the decedent after the date of the will, the divorce decree needs to be provided to the court.
  5. If the person is not able to serve as they are a minor, a birth certificate may need to be provided to the court.

The right to serve may also be waived by failing to contest the appointment of another person.  If someone else is already appointed and someone with higher priority wants to serve, they will have to demand that the letters testamentary for the other person be revoked.

One should also consider the duties the personal representative has to carry out and the liabilities the personal representative may face.  That brings us to our next topic.  Click here to continue reading.  >>>>

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