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The Probate Process in Texas: Dependent vs. Independent Estate Administration

Estate administration in Texas can be complicated.  However, the probate process is necessary and important for ensuring that an estate is distributed according to the wishes of the deceased.  Texas is unique in the way probate cases are handled.  The probate process depends on whether there is a will, whether the will names an executor, and other circumstances. 

Deceased Leaves No Will


When someone dies without leaving a will, the estate of the deceased is subject to dependent probate administration.  Dependent probate administration requires the appointment of a dependent probate administrator or executor.  The term “dependent” means that the administrator is required to seek the courts approval for many transactions that are a normal part of probate process, including the sale of real estate or personal property.  Attorney’s fees and other professional fees must be approved in advance.

The dependent administrator may be required to post a bond with a bonding company that ensures the administrators proper and ethical performance. In order to protect the value of the estate, this bond may be as much as the entire value of the estate. The administrator must also file a sworn accounting for each year and at the conclusion of the probate administration.

A dependent estate administration must remain open for at least 6 months, so that all creditors have time to present their potential claims.  Six months is the minimum time required for dependent probate administration; it is often a much lengthier process.  It is possible for a dependent executor to become an independent executor if all the possible heirs and beneficiaries under the will agree to allow the executor to serve as an independent executor.

Deceased Leaves A Will
 
If the deceased leaves a will and the will names an estate executor, the estate is subject to independent probate administration. Like a dependent probate administrator, an independent probate administrator must collect assets, pay off debts and distribute assets according to the wishes expressed in the last will and testament of the deceased.  However, once an executor is declared independent, the court no longer has jurisdiction over estate administration unless there are problems.  An independent executor does not have to post bond and does not have to obtain the court’s approval in order to fulfill his duties.  This can speed up the probate process and save both time and money.
 
If the will does not specify an executor, the will is subject to dependent probate administration unless the will specifically states that the executor should be independent
Dependent probate administration requires:
 
  • Appointment of a dependent probate administrator or executor.
  • Courts approval for many transactions that are a normal part of probate process, including the sale of real estate or personal property.
  • Advance approval for attorney’s and other professional fees.
  • Sworn accounting from the administrator for each year and at the conclusion of the probate administration.
  • The estate administration must remain open for a minimum of six months to allow creditors to present their potential claims.

The dependent administrator may be required to post a bond with a bonding company in order to ensure administrator’s proper and ethical performance. This bond may be as much as the entire value of the estate.

It is possible for a dependent executor to become an independent executor if all the heirs and beneficiaries under the will agree to allow the executor to serve as an independent executor.

Which type of administration is the best?
 
While an independent probate administration is faster, there are situations where a dependent probate administration is a better option.  If an estate has a high amount of debt, dependent probate administration limits the time that creditors have to make a claim against the estate.  Dependent probate administration is a good option if there are or may be disputes among the heirs or if someone may contest the will.

To learn more about probate administration in Texas, contact The Ashmore Law Firm, PC.  We have written a free book that can guide you through the probate process.  Request your copy of Title goes here. (link to book)

Do you need advice or help getting a will through probate?  A Texas probate attorney can help.  The Ashmore Law Firm has provided Dallas residents with estate administration and probate services for over 23 years.  Contact us to schedule a free consultation.