Scheduling Open
6671 Southwest Fwy, Ste 490-A
By Appointment Only

If you’re not happy with the executor appointed to oversee your estate, you may be able to object to the appointment. Here’s what you need to know.

Letters Testamentary

Court-issued documents that are used to enforce the terms created by a deceased person within their will

Letters of Temporary Administration

Temporary Letters of Administration are temporary because the Fiduciary is not yet named.  They may be issued to protect an estate when a person dies without having a Will or has died intestate.

Rule 245, Rule of Civil Procedure

Requires 45 days of notice prior to the first trial setting in a contested case. All subsequent settings require only reasonable notice to be given.

Order nunc pro tunc

Used by a court to allow a judgment to be effective beginning at a past date rather than the date on which the judgment is entered

Probate Case

In re Estate of Crenshaw, 982 S.W.2d 568 (Tex. App. – Amarillo 1998, no pet.)

Facts & Procedural History

In 1988, Margarete B. Crenshaw (Margarete) executed a will naming her three sons, William, Charles, and James, as her beneficiaries. William was also deemed her independent executor. In 1997, William filed an application to probate Margarete’s will and obtain letters testamentary in County Court. William referred to himself as the sole surviving son of Margarete, which was an inaccurate statement because James was also a surviving son. James filed an answer to the court, in which he objected to William’s appointment as Margarete’s executor and requested a jury trial.

The County Court transferred the case to Lubbock County Court No. 1 after the initiation of a contested issue. During a hearing, James moved for a continuance under Rule 245, arguing that he had only been given seven days notice when he was entitled to forty-five days notice. The trial court denied James’s motion and confirmed William’s appointment as independent executor. The trial court also issued both letters testamentary and letters of temporary administration to William. The trial issued an order nunc pro tunc to accomplish this since William’s request had not included letters for temporary administration.

James appealed on two grounds: 1) The trial court denial of his motion for continuance was an error, and 2) Margarete’s estate had a valid claim against William. The Court of Appeals stated that the first trial setting occurred less than forty-five days after William’s original application, and that without Jame’s knowledge or agreement otherwise, the notice requirement of Rule 245 had not been met. The Court then articulated that a testator does not have sole power in determining their executor, and that James raised a genuine question regarding William’s qualifications as independent executor. The Court found that James met the requirements of an interested person in the estate as the decedent’s son and as a named beneficiary of the will. Since no executor had been appointed at the time of Jame’s objection to William’s appointment as executor, James met the statutory requirements to be heard before the court. The Court of Appeals reversed and remanded the judgment of the trial court.

Main Considerations

What notice must be given to an opposing party prior to the first trial setting?

Texas law allows for any person interested in an estate to file opposition and be heard as in other civil suits. Rule 245 of the Rules of Civil Procedure requires that 45 days notice be given prior to the first trial setting.

The Takeaway

In re Estate of Crenshaw shows that an interested party of an estate (especially a son of a decedent and named beneficiary) may contest the appointment of an named executor prior to their implementation as one. Such an interested party is entitled to the notice allocated to them under Rule 245.

Do You Need to Hire a Probate Attorney in Houston to Settle an Estate?

Do you need help with a probate matter in Houston-metro area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at 281-549-1280 or use the contact form on our homepage to see how we can help.

Legal gavel on a will (legal documents)

Who Is the Executor If There Is No Will?

There is only an executor of there is a will. If there is no will, then a person called an administrator is appointed by a judge to carry out the provisions of laws regarding intestate succession.

What happens if there is no will or no administrator? In that case, a person who would have inherited is named as an intestate heir and becomes the administrator. If there are multiple siblings, then all of them are intestate heirs. The situation becomes cloudy when more than two children are involved. In the event that someone dies without having created a will, that person is said to have died intestate. When this occurs, it then falls to the court system to decide how the deceased’s assets will be distributed among their surviving relatives. This process begins with the appointment of an administrator by a judge; this administrator is responsible for ensuring that the laws regarding intestate succession are followed.

If there is no will or no administrator appointed by a judge, then whoever would have inherited from the deceased under normal circumstances (i.e., if a will had existed) becomes responsible for administering the estate. In cases where there are multiple siblings involved, they all become intestate heirs and share responsibility for administering the estate. Things can become more complicated when more than two children are involved, as different claims may exist among them.

What Does an Administrator of an Estate with No Will Do?

If there is no will then the person who died has died “intestate” and the laws of the State of Texas set out who will receive the property. The person who receives this property is called an “Administrator” and they are appointed by the court to distribute the estate property.

If there is a surviving spouse, children and grandchildren, parents, brothers and sisters, or nieces and nephews, then the Administrator will try to distribute the assets to these people. For example, if your brother left a home in an estate, the administrator will sell that home and give the proceeds to your brother’s children. The surviving spouse will not receive any portion of this house. Instead that money will go to your brother’s children. The administrator of an estate with no will has the responsibility of distributing the deceased’s assets according to the state’s laws. If there is a surviving spouse, children, grandchildren, parents, brothers and sisters, or nieces and nephews, the administrator will attempt to give the property to these individuals. For example, if an individual’s brother leaves behind a house in his estate, the administrator will sell the house and give the proceeds to that person’s brother’s children; the surviving spouse will not receive any portion of this money.

Related Posts