Texas law allows for independent administrations. This is an informal probate process. This gives the executor a considerable amount of leeway to administer the probate estate.
The independent executor is only guided by instructions in the will, if there is a will, and/or by the rules in the Texas Estates Code.
This is why the court sometimes requires probate bonds. These bonds provide a means of recovery if the estate or others suffer due to the misconduct of the executor or administrator.
As highlighted in the recent In Re Cassar, No. 14-17-00825-CV (Ct. App.–Houston 2018) case, there are instances when the probate court will order the executor to post a bond to ensure that the estate is properly managed.
About Independent Administrations
A last will and testament can provide for an independent administration or, if there is no will, an applicant to administer the estate can request an independent administration.
The independent administration provides a simplified method for administering a probate estate. It allows the executor or administrator to “step into the shoes” of the decedent when dealing with the property of the estate.
This means that they can take any lawful act with respect to the property. This is only limited by the prohibitions and liability for self-dealing, theft, etc. found in the law.
This freedom is too much for some executors. They overreach. They treat the property as theirs, or worse yet, spend or deplete the estate assets on themselves or in ways inconsistent with the governing will.
Requiring a Bond
The requirement for a bond is often waived in the decedent’s will or by the probate court in the absence of a will.
Even in an independent administration, the probate court can order that the executor or administrator post a bond.
The probate court generally will impose a bond if it appears that the independent executor is mismanaging the property, has betrayed or is about to betray the independent executor’s trust, or has in some other way become disqualified.
Moving Probate Assets Out of the U.S.
The In Re Cassar case provides an example of this. In the case, the executor moved a substantial portion of the assets to Canada.
The probate court found that he did not make the transfers in bad faith, rather, he was a Canadian citizen. The beneficiaries under the will that was probated were all also Canadian citizens.
Another party filed a will contest and asked the court to require a bond given the executor’s mismanagement of the estate. The probate court granted the motion and required the executor to post a bond or return the assets to the United States. The executor posted the bond.
No Bond Without a Complaint
The court case highlights the requirements for the probate court to order a bond. Specifically, the dispute resulted in the probate court entering an order for the bond twice. The probate court did not have a complaint that supported the second bond order, which was overturned by the appeals court.
The appeals court noted that the probate court cannot order a bond be posted without first having a complaint filed by a person who has a debt, claim or demand against the estate.
If you are facing probate issues in Texas, Kreig LLC offers a FREE attorney consultation by calling (281) 219-9090. Our experienced probate attorneys will work with you to provide the guidance and support you need during this difficult time.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with probate bonds. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.