Dear Mr. Premack: My parents live in Texas. I live in Texas and have a brother who lives in Texas and a sister who lives in California. My parents have been led to believe their Executor should live in Texas. I know it is not a requirement. Is there any down side to my sister being the Executor? My parents would prefer to have my sister as Executor but have been scared into using my brother who is a Texas resident. They have been told the state can require you to respond or show up to a hearing with 48 hour notice or the state will make the decisions on how to handle the estate. They would prefer not to have my brother involved. – PJLJ
In order to become Executor, a person has to be “qualified” as that term is defined in the Texas Estates Code. One qualification is that the Executor must either be a Texas resident or, if not a Texas resident, must name a Texas resident agent to accept service of court documents. It is typical for a non-resident Executor to name the probate attorney who is handling the estate as the agent for service.
Thus, there is no legal barrier to your parents deciding to appoint your California sister as their Executor. The factors in selecting an Executor should be that person’s trustworthiness, diligence, experience, availability and willingness to serve. You say that they are hesitant to appoint your Texas brother as Executor. Do they worry whether he is trustworthy? Do they fear he is a procrastinator? Does he travel extensively or is he generally unavailable? Conversely, do they feel that your California sister will be able to come to Texas when she is needed?
You say they were told that the state can require a person to respond or show up to a hearing with 48 hour notice, and failure means that the state makes decisions for the estate. Strictly speaking, none of those fears are justified. Yes, there are extreme situations where an Executor may have to appear in court on short notice – but they are extreme, unusual and far outside the norm. In fact, your parents have the legal power to avoid deep entanglement with the state (that is, the court) by having their Elder Law attorney write legal documents allowing their Executor to serve without court supervision.
By default, an Executor is required to seek approval from the court for a wide variety of activities. This default position is called a “Dependent Probate” because it depends on the court to review and approve the Executor’s activities. Generally when you read something negative about probate, you are reading about Dependent Probate. But the default can be easily dismissed with proper legal documents from your parents’ Elder Law attorney, allowing the executor to act without court review. This position is called an “Independent Probate” because the Executor (once granted letters testamentary by the court) is not subject to further review and approval.
Your parents thus need to ask their attorney to include four things when writing their Wills. First, they need to name an Executor; they should consider naming each other as primary Executor. Second, they need to name at least two alternate Executors to act in case a higher choice has died or is disabled. This is where your sister and someone else (you?) could be named. Third, they need to instruct the court to allow the Executor to be independent of supervision. Fourth, they need to decide whether to waive the Executor’s bond.
By law, all Executors must post bond with the court to protect the other devisees in case of negligence or fraud. However, the bond can be quite expensive and can take too much time to obtain. If your parents are selecting an Executor who they judge to be trustworthy and honest, they can dispense with the need for the Executor to purchase a bond. To do so, their Wills must expressly say that no bond is required of the Executor.
If you parents feel your California sister is trustworthy, available, experienced and diligent, they can certainly name her as Executor. The job will be even easier for her if they update their legal documents to allow her to be independent of court supervision and to act without bond. They should have a personal consult with a certified elder law attorney to decide on their next steps.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, January 27, 2014