The Common Law
Relative dies with a will – what next? (Part 2)
BY JOE MARRS, FRI., MARCH 4, 2022
A relative passed away recently and the duty has fallen to me to wind up her affairs. She left a will. Where do I start? Can I do this without a lawyer?
Last month’s column addressed the probate of a will as a “muniment of title,” which is appropriate when there is no necessity for an administration of the decedent’s estate. In the majority of estates, however, someone will need to act in the name of the deceased to pay debts, collect assets, make decisions, manage property, and give notice to creditors. These types of actions are called an “administration” and require a personal representative of the estate, usually the executor named in the will. The authority to manage the administration of an estate is given to the executor named in the will in the form of “letters testamentary.” The letters are obtained by application to the proper county court of the county in which the decedent was domiciled. (In Travis County, it’s the Travis County Probate Court, with Judge Guy Herman or one of his associates presiding.) Verbal testimony at a short hearing and the county judge’s approval is required before the county clerk will issue letters to the executor.
When an administration is necessary in Travis County, the court will require you to hire an attorney because the law will prohibit nonlawyers from appearing in court on behalf of an estate. The risk of legal liability to the executor and the risk of loss to the beneficiaries of the will is too great to proceed blindly with the duties of an executor. As a named executor, you will have specific duties under Texas law, including filing an inventory and giving notice to creditors. These actions are mandated by statute and will require the assistance of an attorney.
While you may dread hiring a lawyer, the peace of mind that comes with handing this burden off to a professional is usually well worth the fee. Added to this is the sobering fact that mishandled estates often result in bigger problems down the road. Too often, even good intentions (e.g., saving money and keeping the lawyers out) lead to bad decisions at a time when families ought to be worried about each other, not the “stuff” in the estate. If you do not know a lawyer with probate experience, Volunteer Legal Services of Central Texas (vlsoct.org) or Austin Lawyer Referral Service (austinlrs.com) can help you find one.