Do You Know Your Probate Terminology?

The Dallas Morning News had a great column this week written by Virginia Hammerle on terms heard when talking about probate.  I am reprinting below that entire article.

Cracking the code

The special language of probate

LEGAL TALK TEXAS

At least 99 percent of you will, at some point, have your life touched by a probate estate.  If you are very unlucky, then you might even be appointed as an executor or administrator. This article is a clip-and-keep for when that time comes.

Here is your key to the mysterious terminology of Texas probate.

Decedent: the person who just passed away.

Estate: the assets and debts of the decedent.

Probate: the court proceeding to handle the decedent’s estate.

Texas Estates Code: the source of all wisdom in the world, according to more than one Texas probate judge.

Will: a written document either signed by a decedent or completely in the decedent’s handwriting and signed by decedent, that disposes of the decedent’s estate upon death. Hopefully not based on an internet form.

Executor: the person appointed by the court to execute the terms of a will in a probate estate.  There are two flavors: independent and dependent.  The independent Executor acts without court supervision.  The Dependent Executor has to obtain court permission before performing any duty or taking any action.  Generally speaking, if the estate is solvent, then it is much better to be an Independent Executor than a Dependent Executor.

Administrator:  the person appointed by the court to handle an estate when there is no valid will.  An Administrator’s life is always more difficult than that of an Executor, simply because there is no will.

Letters Testamentary:  This is a document prepared by the county clerk that states the executor or administrator is authorized to act.  Most third parties demand to see original Letters Testamentary; thus the executor usually orders at least six.  The Letters are technically good for only 60 days, and new Letters may have to be requested when the old ones expire.

Devisee: the person the decedent designated in writing to inherit an asset.

Heir:  This is someone who inherits as a matter of law because the decedent did not leave a will.  Heirs and Administrators go hand-in-hand into the wilderness of “no will.”

Fiduciary:  the executor or administrator.  A fiduciary’s duty is the highest duty in law.  Think of it as the rope used to legally hang a crooked executor or administrator.

Citation: a formal notice issued by the court clerk about the probate.

Notice to Creditors: a formal notice given by an executor or administrator to all secured creditors, and some unsecured creditors.  This is the first of many probate pitfalls, because if notice is not timely given, then the executor or administrator can be held personally liable for damages.

Inventory:  a list of all probate assets, together with values as of the date of death.

Estate Tax Return, Decedent’s Income Tax Return, Federal Fiduciary Tax Return:  the reason every probate estate has a CPA on retainer.

And that should be enough to get you started down the probate path.

hammerleVirginal Hammerle received her J.D. (Juris Doctor) from SMU in 1982.  Find more articles at hammerle.com.  To receive the monthly email newsletters, send your request to legaltalktexas@hammerle.com

 

The information contained in this article is general information only and does not constitute [legal advice.]

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