Who will serve as personal representative after you’ve passed on? Many people think about this while planning their estate, but it’s important to know who is eligible to serve and who will serve by default if you don’t name a personal representative properly.
Selecting The Personal Representative (Executor vs Administrator)
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.
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). 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:
- The person named as executor in the decedent’s will
- The decedent’s surviving spouse
- The principal devisee of the decedent
- Any devisee of the decedent
- The next of kin of the decedent
- A creditor of the decedent
- 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:
- Minors and incapacitated persons
- Persons convicted of a felony
- Those who are not individuals, such as corporations
- 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.
The Registered Agent
While the personal representative does not have to reside in Texas. If the personal representative is not a Texas resident, they need to appoint a Texas registered agent. The registered agent is the person designated to accept service of process in the probate proceeding. This is usually done by filing an Appointment of Registered Agent with the county clerk that cites Texas Estates Code § 304.003.
The registered agent can be removed and replaced by filing a Designation of Successor Registered Agent with the county clerk. Similarly, the registered agent can resign by filing a Resignation of Registered Agent with the county clerk. The procedures for this can be found in Texas Estates Code §§ 56.001 and 56.002.
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 a 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 which executor named in the will is not going 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:
- 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.
- 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.
- 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.
- 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.
- 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.
Do you need to hire an Experienced Probate Attorney to help with your Estate?
No one likes to think about their own mortality, but it is important to have a plan in place for what will happen to your estate when you die. If you don’t have a will or other estate planning documents in place, the state will determine who will serve as the personal representative of your estate. This person will be responsible for managing your assets and distributing them according to your wishes (or the state’s laws if you don’t have a will), and the general administration of your estate.
There are a few things to consider when choosing a personal representative for your estate. First, you’ll want to choose someone you trust implicitly. This person will have a great deal of control over your assets, so you need to be sure they will act in your best interests. You should also consider whether the person you choose is up for the task – managing an estate can be complicated and time-consuming. If you’re not sure who would be best suited for the job, you may want to consider hiring an experienced probate attorney to help with the process. Call us today for a FREE attorney consultation. (469) 895-4333.
Related Questions:
What power and duties does a personal representative have? Can these change?
As the personal representative of an estate after death, you have a number of important responsibilities. These include:
- Filing the deceased person’s last will and testament with the court
- Notifying the deceased person’s creditors of their death
- Paying the deceased person’s debts and taxes
- Distributing the deceased person’s assets to their heirs or beneficiaries
Is a personal representative the same as an executor?
If you die without a will, the court will appoint a personal representative to administer your estate. If you die with a will, you can name an executor in your will. Although the terms are often used interchangeably, there are some important differences between personal representatives and executors.
A personal representative is appointed by the court and has the authority to administer your estate. An executor is named in your will and has the authority to carry out your wishes as specified in your will.
If you don’t have a will, the court will appoint a personal representative to administer your estate. The court may appoint your spouse, adult child, or other close relative as personal representative. If there is no one willing or able to serve, the court may appoint a professional administrator.
An executor is named in your will and has the authority to carry out your wishes as specified in your will. You can name anyone you want as executor, although it’s typically someone who is close to you and who you trust to carry out your wishes. Many people choose to name their spouse or adult child as executor.
How to sign documents as the legal personal representative of an estate?
When you die, your estate must go through probate. This is a legal process in which the court appoints someone to manage your estate and carry out your final wishes. The person appointed by the court to do this is called the personal representative.
The personal representative is responsible for carrying out the instructions in your will. They will also be responsible for managing your property, paying your debts, and distributing your assets to your beneficiaries.
If you have a will, you can name a personal representative in it. If you don’t have a will, the court will appoint one for you. The court will usually appoint a close relative or friend to serve as personal representative. But sometimes the court will appoint a professional, such as a lawyer or accountant.
If you are named as personal representative in someone’s will, you can choose to accept or decline the position. If you accept, you must sign a document called a “letter of administration” (or “letters testamentary” if the person died with a will). This document gives you the legal authority to act on behalf of the estate.
If you decline to serve as personal representative, the court will appoint someone else to do it.
What is a personal representative deed?
A personal representative is someone who is legally appointed to manage your estate after you die. The personal representative deed is a document that appoints that person.
The personal representative deed should be signed by you and the person you are appointing as your personal representative. It should also be notarized. The deed should state the full legal name of the person you are appointing and what powers they have. You can give them as much or as little power as you want.
The personal representative will have the responsibility of managing your estate according to your wishes. This includes gathering your assets, paying your debts and distributing your assets to your beneficiaries.
If you do not have a personal representative deed, the court will appoint someone to serve in this role. It is important to appoint someone you trust to carry out your wishes and manage your estate in the way you want.
Who can be a personal representative?
There are a few different options for who can serve as the personal representative of your estate. The first option is to name someone in your will. This person will be responsible for carrying out your wishes and distributing your assets according to your instructions.
Another option is to allow the court to appoint a personal representative. This may be necessary if you do not have a will, or if the person you named in your will is unable or unwilling to serve. The court will appoint someone who is qualified and willing to serve.
Once you have decided who will serve as the personal representative of your estate, it is important to communicate your wishes to them. Be sure to provide them with a copy of your will, if you have one, and let them know what you would like them to do.
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