Dallas and Neighboring County Probate Court Local … and Neighboring County...Dallas and Neighboring County Probate Court Local Guidelines . ... person, if all heirs sign court consent

1

Dallas and Neighboring County Probate Court Local Guidelines

Dallas County Probate Courts Collin County Probate Court Denton County Probate Court Tarrant County Probate Ct. #21

I. INITIAL APPLICATION & HEARING

A. Independent Administration – By Will

1. If the Will names an independent executor but does not have special §401.001(a) language, will the Court grant independent administration?

Yes. Yes, whenever the language in the will suggests intention of testator for independent administration, or when all beneficiaries consent to independent administration.

Yes Yes

1Tarrant County Probate Court No. 1 has advised that information on its Court Policies can be found at: https://www.tarrantcounty.com/epc01/lib/epc01/Probate_Court_Number_One_-_Court_Policies.pdf Probate Courts Local Guidelines Revised 12/2011 Tarrant County Probate Court No. 1 has advised that the Ad Litem Manual for 2014 for Guardianship & Heirship Proceedings in Texas Probate Courts can be found at: http://www.tarrantcounty.com/epc01/lib/epc01/Ad_Litem_Manual_2014.pdf Revised 07/2013

https://www.tarrantcounty.com/epc01/lib/epc01/Probate_Court_Number_One_-_Court_Policies.pdf

http://www.tarrantcounty.com/epc01/lib/epc01/Ad_Litem_Manual_2014.pdf

2


2. If the Will names an independent executor but is silent as to bond requirements, will the Court in its discretion consider granting independent administration without bond?

No, unless all devisees agree. When all beneficiaries consent, bond will normally be waived.

Yes No, testator may not have wanted named executor to serve without bond.

3. What are open-docket hours for the judge to hear prove-up of Wills?

All matters must be specifically set.

You can avoid waiting by scheduling a setting with the Court Clerks, but uncontested drop-in matters will be taken up anytime judge is in the courthouse- generally 9 am to 5pm, Monday through Friday.

All cases are docketed by the Court Administrator.

All matters must be specifically set

4. What are hours for the court administrator to hear prove-up of Wills?

By appointment only. Court Administrator does not hear prove-ups. Only the judge hears cases.

Associate Judge cases are all on docket by Court Administrator

Not done

3


5. If the Will is not self-proved but subscribing witnesses can be located, must they provide testimony to prove up a Will?

Yes, either in open court or by deposition. But if subscribing witnesses are nonresidents of Dallas County and no written opposition to the Will has been made, the applicant can use alternative proof available under §256.153(c).

Yes, but as the statute says, only when the subscribing witnesses are located in the county. When the subscribing witnesses are out-of-county, then you can prove the will up through the testimony of non-subscribing witnesses. This is seldom a problem. See the judge prior to the hearing if you have any concerns.

Yes, either in open court or by deposition. But if subscribing witnesses are nonresidents of Dallas County and no written opposition to the Will has been made, the applicant can use alternative proof available under §256.153(c).

Yes, either in open court or by deposition. But if subscribing witnesses are nonresidents of Tarrant County and no written opposition to the Will has been made, the applicant can use alternative proof available under §256.153(c). Attorneys have the burden of proving that a will is self-proved under laws other than Texas.

6. If a Will provides for independent administration but does not contain language authorizing the personal representative to sell real property or contains language that is not sufficient to grant the representative that authority, under what circumstances will the Court grant such authority?

Include request in application to probate will. Each beneficiary who is to receive an interest in the real property must consent to the grant of such power. Grant of the power should be included in the order admitting the will to probate.




4


B. Independent Administration – Court Created

1. Is it the attorney’s responsibility to ensure that citation is issued and that the court administrator has the filed application?

Yes. Yes. Yes. Attorney has burden to see fees are paid and should call clerk prior to hearing to confirm notice properly posted.

Yes, but clerk issues citation and sends application to court when set for hearing

2. Does the application need to be signed and sworn to by the applicant?

No, but sworn written agreement of all distributees must eventually be provided (see guidelines for court-created administration).

No, but sworn written agreement of all distributees must eventually be provided.

Yes. No, but sworn written agreement of all distributees must eventually be provided (see guidelines for court-created administration).

3. Is a special setting required for hearing an application for court-created independent administration?

Yes. No. No. Yes.

4. If all heirs/distributees agree to the advisability of a court-created independent administration, will the court appoint an independent executor or administrator without bond?

Yes, under appropriate circumstances.

Yes, when all heirs consent to waive bond. Remember to include waiver of bond provision in document consenting to independent administration.

Yes. Yes, except where testimony indicates that one of the heirs is a minor or an incapacitated person, if all heirs sign court consent form that clarifies the purpose of the bond and yet waives it. Consent form available on court website.

5


5. What is required for the Court to create an independent administration other than the applicable code provisions and the guideline requirements?

A determination of heirship in intestate cases.

No other requirements. Code now requires Determination of Heirship for all §401.003 intestate independent administrations.

See Local Rule as to notice. A determination of heirship in intestate cases.

6. If there are minor distributees and all of the above requirements are met, will the Court create an independent administration?

No. The Court will not grant independent administration if a minor or incapacitated adult is among the distributees or heirs at law, except under special circumstances and the administrator is fully bonded.

Often, yes, but it depends on the circumstances. Bond will almost always be required if the administrator is someone other than the parent of the minor.

Yes, with approval of ad litem for minors.

Yes, provided that the guardian of the person of the minor signs a consent and the administrator is bonded and court decides it is in best interest of the minor

7. If there is an incapacitated adult distributee and all of the above requirements are met, will the Court create an independent administration?

PC1 and PC2: Yes, under appropriate circumstances. If a guardian and/or attorney ad litem has been appointed, the Court will consider creating an independent administration

PC3: No. The Court will not grant independent administration if a minor or incapacitated adult is among the distributees or heirs at law, except under special circumstances and the administrator is fully bonded.

Often, yes, again depending on the circumstances. Bond will almost always be required if the administrator is someone other than the parent of the incapacitated adult distributee.

Yes, with the approval of the ad litem for incapacitated person.

Yes, provided that the guardian of the person of the incapacitated person signs a consent and the court determines that it is in the best interests of the incapacitated heir

6


8. If an applicant is seeking a court-created independent administration and the named executor in the will is deceased or cannot serve and no alternative is named, what is the proper designation for the personal representative?

Independent Administrator with Will Annexed. Letters of Independent Administration with Will Annexed will be issued.

Independent Administrator with Will Annexed. But I would not reject the Order if it used different wording.

Independent Administrator with will annexed.

Independent Administrator with Will Annexed. Letters of Independent Administration with Will Annexed will be issued.

9. Under what circumstances will the Court authorize the independent administrator or independent administrator with will annexed to sell real property belonging to the estate?

Each of the beneficiaries who are to receive any interest in the real property must consent to the grant of such power. The grant of a power of sale must be included in the order creating independent administration and appointing independent administrator.

Each of the beneficiaries who are to receive any interest in the real property must consent to the grant of such power. The grant of a power of sale must be included in the order creating independent administration and appointing independent administrator..

Each of the beneficiaries who are to receive any interest in the real property must consent to the grant of such power. The grant of a power of sale must be included in the order creating independent administration and appointing independent administrator.

Independent administrator must comply with the dependent administration sale of property provisions of the Estates Code

C. Dependent Administration

1. Will court administrators hear applications for dependent administration?

Contact court. No. No. No, the associate judge hears most of these

7


D. Creditor-Induced Dependent Administration

1. Upon the creditor’s application and after hearing, will the Court appoint an independent third party selected by the applicant as administrator?

Yes. Generally yes, but the court would appoint the closest living heir if an heir expressed a willingness to serve as the administrator.

Yes. Yes, but court will appoint AAL for unknown heirs who may object

2. Will the Court require that notice be sent to the surviving spouse at the last known address?

Yes. No citation is required, only notice by certified mail.


Yes, via certified mail, return receipt requested.


3. Will the Court require that that creditor pay the expense?

Yes, if the estate has no funds. Yes, if the estate has no funds. Yes, subject to reimbursement from estate.

Yes, if the estate has no funds.

4. What proof of standing does the Court require for a creditor to open a dependent administration?

Proof of debt and true and correct copies of all instruments showing ownership and transfer of the debt. If the applicant is an agent of the creditor, the Court requires proof that opening a probate administration is within the scope of agency.

Proof of debt. Uncontested applications are seldom denied. Contested applications are seldom granted when an heir of the estate is willing to serve as administrator.



8


5. What type of bond will the Court require?

$10,000 minimum, corporate surety.

Dependent upon circumstances and matters in issue.

Case by case determination; usually surety or corporate--sometimes personal.

$20,000 minimum corporate surety.

6. If the administrator compromises the claim pursuant to §351.051(5) by conveying the property back to the creditor in exchange for cancellation of the debt, will the Court allow the creditor to retain its lien so that in the future the creditor can foreclose on its lien and extinguish junior liens?

Only the language provided in the applicable code section is allowed in the transfer.

It would be difficult to conclude that it is in the best interests of an Estate to allow a creditor to retain a lien to cut off junior lien-holders if this would leave the Estate responsible for the junior debts, and having no security interest to use or apply to the satisfaction of those junior debts.

No. Once the §351.051(5) conveyance is made, the lien is extinguished along with the debt.

Court will allow only what Code allows upon proper application and posting period for interested parties to object.

E. Temporary Administration of Decedent’s Estate

1. What evidence must the Court be shown before allowing a temporary administration?

Compliance with Estates Code Chapter 452 Subchapter A or B, whichever is applicable.

Compliance with Estates Code Chapter 452 Subchapter A or B, whichever is applicable..

Code dictates minimum requirement.

Compliance with Estates Code Chapter 452 Subchapter A or B, and on uncontested cases, proof that applicant can’t wait the 10 day posting period for a dependent administration and thus avoid duplication of effort.

2. Will the Court require an inventory?

Discretionary. Discretionary. Yes. Discretionary

9


F. Muniment of Title

1. Will the Court waive the filing of a sworn affidavit regarding the fulfillment of the terms of the Will?

Yes, if the applicant is the sole distributee. However, the waiver must be included in the Order admitting the Will into probate.

Yes, when the applicant is the sole heir, or when the evidence clearly and convincingly establishes that all heirs are aware of the terms of the will and that it is being probated.

Yes, if facts support. Yes, if applicant is sole devisee or other beneficiaries have filed waivers.

2. Will the Court waive the filing of a sworn affidavit regarding the fulfillment of the terms of the Will in cases where there is more than one distributee?

PC1 and PC2: Yes, in certain circumstances where all devisees are applicants or consent.

PC3: Yes, in certain circumstances where all devisees are applicants.

Yes, when the evidence clearly and convincingly establishes that all heirs are aware of the terms of the will and that it is being probated.

Yes, if the facts support such waiver.

Yes, if other beneficiaries file waivers prior to hearing.

3. In cases where more than four years have elapsed since the death of a testator, will the Court require a showing of no default on the part of the applicant prior to admitting a will to probate as a muniment of title?

Yes. The Court will also require notice pursuant to Estates Code Chapter 258 Subchapter B.

Yes. The Court will also require notice pursuant to Estates Code Chapter 258 Subchapter B. [I do not construe §258.051 as requiring service on intestate heirs who take the same under a will as they takes in the event of intestacy.]

Yes. §256.003 and §§258.051-053 are required.

Yes. The Court will also require notice pursuant to Estates Code Chapter 258 Subchapter B.

10


4. Does the Court require any specific pleadings or proof not set forth in the Texas Estates Code to admit a will to probate as a muniment of title?

Yes. The applicant must allege and the proof of facts must avow that the Decedent did not apply for nor receive Medicaid benefits on or after March 1, 2005.

No. Medicaid is a poverty program. Less than 1% of our will cases involve Medicaid recipients. Medicaid debt is secured by a lien on real estate.

Yes. The applicant must allege and the proof of facts must avow that the Decedent did not apply for nor receive Medicaid benefits on or after March 1, 2005.

No

G. Probate of Written Will Not Produced in Court

1. Do the rules governing wills not produced in court apply to photocopies of Wills offered for probate?

Yes. Yes, but note that a photocopy of the self-proving affidavit self-proves the original will. You do not need to produce witness testimony concerning the execution of a lost will if there is a photo-copy of the lost will and the self-proving affidavit.

Yes. Yes, and will is not considered to be self-proved even though copy shows that original was self-proved.

2. Are there any special notice requirements when probating a written Will not produced in court?

Yes. See §258.002. Yes. §258.002 requires citation on all interested parties and (intestate) heirs. [I do not construe §258.002 as requiring service on intestate heirs who take the same under a will as they takes in the event of intestacy.]

Yes. See §258.002. Yes, all heirs at law must sign waivers or be notified by certified mail per §258.002.

11


3. If a photocopy of a signed Will is submitted, is it necessary to prove up the contents by the testimony of a credible witness who has read the Will or heard it read?

No. Testimony of a credible witness who can identify the instrument as a true and correct copy of the Will is sufficient. See §256.156.




H. Small Estates

1. Must the affidavit characterize the Decedent’s property as either community or separate?

Yes. Yes. Yes. Yes

2. Must the affidavit list the assets and liabilities of the estate?

Yes. Yes. §205.002(3)(A) Yes. Yes

3. Must the affidavit trace the family history of the Decedent?

Yes, the affidavit must state facts sufficient to determine who would be the heirs at law.

Yes, the affidavit must state facts sufficient to determine who would be the heirs at law. §205.002(3)(C)



4. Must the affidavit include dates of birth and dates of marriage?

Yes, to the extent necessary to raise a presumption of parentage.

No. Yes, to the extent necessary to raise a presumption of parentage.

No

12


5. Must the affidavit be signed and sworn to by all the distributees?

Yes, although a parent can sign as next friend of a minor distributee.

Yes. §§205.001(4) and 205.002 Note that natural guardian (parent) or next of kin of any minor can sign for minor. Guardian can sign for incapacitated distribute.

Yes, although a parent can sign as next friend of a minor distributee.

Yes, and when parent signs for minor, the court will appoint an AAL for minor prior to approving affidavit.

6. Must the affidavit be signed and sworn to by two disinterested witnesses?

Yes. Yes. §§205.001(4) and 205.002 Yes. Yes

7. Can a small estate affidavit be approved if the Decedent died with a Will?

PC1 and PC2: No.

PC3: No, unless all distributees enter into a formal, written agreement to not probate the Will, which would render Decedent as having died intestate.

No, unless all distributees enter into a formal, written agreement to not probate the Will, which would render Decedent as having died intestate..

No. No

13


8. If the Decedent left no surviving spouse and no minor children, the Decedent’s only real property was a personal residence, and the value of the estate (excluding the Decedent’s residence) is less than $50,000.00, will the Court ignore the value of the residence and approve the affidavit?

No. The value of the Decedent’s residence must be included in the calculation of the estate’s value, even if it was protected from creditors as a homestead during the decedent’s lifetime (unless the Decedent is survived by a spouse or minor children).

The affidavit can be approved, not because the Court is ignoring the value of the residence, but because the affidavit meets the valuation criteria for approval of §205.001(3)

§205.008 & §205.006 transfer title only to the homestead. §205.006 additionally provides protection to BFP’s, and this BFP protection for real estate applies only to the homestead.

Some estates, such as the one described, have non-homestead real property that fits within the $50,000 non-exempt property limits of Chapter 205. These estates are not disqualified from using Chapter 205 by virtue of the fact that there is some non-homestead real property. There is simply no §205.006 transfer of title to the non-homestead real property, and no BFP protection for purchasers of the non-homestead real property.

No. The value of the Decedent’s residence must be included in the calculation of the estate’s value, even if it was protected from creditors as a homestead during the decedent’s lifetime (unless the Decedent is survived by a spouse or minor children).

Yes

14


9. Will the Judge approve the affidavit if the estate is solvent and the only asset of the estate is the Decedent’s homestead and the Decedent is survived by a spouse or minor children?

Yes, if the affidavit complies with §205.002.

Yes, as well as when the estate is insolvent. Chapter 205 does not require that the estate be solvent. Chapter 205 heirs take subject to §101.051 and §101.052 responsibilities, which provides that heirs take subject “to the payment of the debts of the intestate.” Heirs taking the estate under Chapter 205 have legal responsibilities to creditors under §101.051 and §101.052.

Yes, if the affidavit complies with §205.002.

Yes, but court may appoint AAL for any minor heir

15


10. Does this procedure clear title to real property other than the homestead?

No. It is for collection purposes only.

No, with a caveat- §205.006 transfers title rather than clearing title, and this transfer of title is limited to the homestead by §205.008 and §205.006. §205.006 then provides protection to bonafide purchasers for value, and this BFP protection for real estate applies only to the homestead. Again, some estates have non-homestead real property that fits within the $50,000 non-exempt property limits of Chapter 205, and such estates are not disqualified from using Chapter 205 by virtue of the fact that there is some non-homestead real property. There is simply be no §205.006 transfer of title to the non-homestead real property and no BFP protection for purchasers of the non-homestead real property. Heirs can then file affidavits-of-heirship in the deed records for non-homestead real property.

No. No, court will not approve a small estate affidavit that lists real property other than a homestead of the decedent.

16


11. Will the Court enter any other findings in connection with its approval of a small estate affidavit?

No. Yes, if requested and supported by the circumstances of the estate.

No. No other findings, but court may order that a minor’s share of personal property be paid into the court registry per §1355.001.

I. Guardianship

1. What information should be included in an affidavit of indigency?

All the information requested in the form affidavit prepared by the courts. These forms are available from the Court.

The requirements are set forth in Texas Rules of Court 145-2

Court is currently working on guidelines for indigency affidavits and will post to the Court’s website when complete (see link below).

All the information requested in the form affidavit prepared by the courts. These forms are available from the Court.

2. With respect to applications for guardianship of the person only, what is the minimum amount the Court will require as to the bond?

$100 cash bond. Almost all applicants are approved for personal bonds of $50.00.

$500 personal surety. Guardians of the Person are given three (3) options: (1) $250 cash; (2) $500 personal surety with two (2) sureties; and (3) $1,000 corporate surety.

$100 personal surety bond executed by two persons per §1105.201. Bond form available in courtroom and on court’s website.

3. Are annual reports on the condition of the ward required of the guardian of the person?

Yes. No attorney’s fees will be approved for completing this report.

Yes. Yes. Annual Report forms are provided to the Guardian at the final hearing and can be requested at any time thereafter.

Yes and guardians of the person may serve without counsel.

17


4. With respect to a guardianship application for an adult alleged to be incapacitated, what medical evidence is required by the Court prior to any appointment?

Report signed by a medical doctor licensed in Texas that complies with §1101.103 and §1101.104. A form of doctor’s report can be obtained from the court.


Doctor’s form letter meeting the requirements of §1101.103 and §1101.104. Report form available from Court Investigator’s office.


5. Will the Court accept a doctor's certificate other than the form prepared by the Courts?

Yes, so long as it contains all the information required by §1101.103 and §1101.104.

Yes, as long as it contains all required §1101.103 and §1101.104 information.

Yes, so long as it contains all the information required by §1101.103 and §1101.104.


6. What service is required with respect to interested person and others in connection with a regular guardianship proceeding?

Service in accordance with Chapter 1051 Subchapter C

Service in accordance with Chapter 1051 Subchapter C.

Chapter 1051 Subchapter C requirements plus any half-blood siblings of ward.

Service in accordance with Chapter 1051 Subchapter C.

7. With respect to an application for guardianship of a minor filed by a divorced parent, under what circumstances will the Court require a waiver or appearance from the non-filing natural parent?

Service in accordance with Chapter 1051 Subchapters B and C.


Service in accordance with Chapter 1051 Subchapters B and C. Alternative service methods can be required, i.e., by publication to a last known address.


18


8. Are there circumstances when the Court will waive the annual accounting? If so, what is the maximum time period within which an accounting will be required.

No. Annual accounting required.

Yes. Three years. No. Yes, court will waive annual accountings for minors where bank is trustee or guardian and will waive for up to three years.

9. Is a Court Investigator’s Report required before a hearing on a permanent guardianship may be had?

Yes. Yes, as a general rule, but circumstances of case sometimes require hearing case before report is completed.

Yes. Yes.

10. When will the Court appoint an attorney ad litem?

After the court investigator’s report is completed.

After the court investigators report is completed, unless some urgency requires an earlier appointment.

At filing. After the court investigator’s report is completed.

11. Before spending income or corpus of the estate for the support of a minor ward, what must a guardian who is also the ward’s parent prove to the court?

The parent of a minor must demonstrate by clear and convincing evidence that the parent is unable otherwise to support the ward without unnecessary hardship. As a rule, the request should be made at the time the application for appointment of permanent guardian is filed and the showing made at the hearing on the application.




19


12 Is expenditure approval required to use income for purposes other than those listed in §1151.103?

Yes. Yes. Yes; may be done by ratification

Yes.

13. If the proposed ward was a disabled child subject to an order affecting the parent-child relationship (“SAPCR Order”) and the Court appoints as guardian a parent who was managing or possessory conservator under such order, will the court order appointing a guardian preserve to the extent possible the terms of possession and access to the ward that applied under the SAPCR Order?

Yes, unless the evidence shows that continuation of that arrangement is not in the best interests of the ward.




20


14. Is the purchase of an automobile a permitted expenditure for a minor ward?

With prior court approval. The Court will require a hearing with guardian and ward present. Evidence must include driving record of ward, ward’s valid operator’s license, copy of insurance covering the vehicle and the ward, and certificate of completion of a driver’s education course. Parents of minor must pay for the insurance and upkeep of the vehicle; such expenses can be paid by the estate if the ward’s parents are deceased or their parental rights have been terminated.

Circumstantially, yes. There must be sufficient funds in the estate to pay for the vehicle and leave remaining adequate funds for advanced education of the ward.

With prior court approval. The Court will require a hearing with guardian and ward present. Evidence must include driving record of ward, ward’s valid operator’s license, copy of insurance covering the vehicle and the ward, and certificate of completion of a driver’s education course. Parents of minor must pay for the insurance and upkeep of the vehicle; such expenses can be paid by the estate if the ward’s parents are deceased or their parental rights have been terminated.

Yes, with Court approval. The requests are considered on a case by case basis. The Court will not approve the purchase of just any vehicle for a minor ward, the court will need the make and model of the car to be purchased before approving the expenditure. The court will also take in to consideration the size of the wards estate, the age of the ward, and the prior driving history of the ward. A hearing is not necessarily required.

15. Can the guardian use a credit or debit card to pay for the ward’s expenses?

Yes, so long as the debts are paid in full and on time each month and the expenses are covered by an order of allowance. Receipts for purchases made using credit or debit cards must be submitted with the annual account. Late charges, interest and other fees may be charged against the guardian’s commission.




21


J. Temporary Guardianships

1. What is the standard for granting a temporary guardianship?

See §1251.001. Statutory §§1251.001-013 requirements. Imminent danger and immediate necessity.

Imminent danger and/or immediate necessity.

Imminent danger to the person or estate of the Proposed Ward.

2. What must the sworn application contain?

See §1251.003. See §1251.003. Requirements of §1251.001-003 in customary form; same as permanent pleadings.

See §1251.003.

3. Can a hearing be held the same day an Application is filed?

No, unless the proposed ward has been served and an ad litem can be present.

Yes, with service on the ward and ad litem in attendance.

Yes, if ward has been served and ad litem present.

Yes, if the Proposed Ward has been personally served and the AAL has been appointed and had the opportunity to consult with the Proposed Ward.

4. When is an ad litem appointed?

Immediately upon filing. Upon filing of application Upon filing of application Upon filing.

5. What type of notice is required?

Personal service on ward prior to hearing. See §1251.005. Return of service must be filed before hearing.

Personal service on ward. Personal service on ward. Personal service on Proposed Ward.

22


6. What notice can be waived? PC1 and PC2: Personal service on ward prior to hearing. See §1251.005. Return of service must be filed before hearing.

PC3: Personal service on proposed temporary guardian, if not the applicant, prior to hearing. See §1251.005. Return of service must be filed before hearing.

Ward’s notice cannot be waived. Ad litem can waive §1251.005 notice to ad litem only.

Notice to wards cannot be waived.

Personal service on Proposed Ward cannot be waived.

7. How much bond will the Court require?

Corporate surety in an amount as required by estates code. $1,000 minimum personal surety bond for person.

Generally $50 personal bond for temporary guardian of person. Value of Estate and potential detriment to third parties determines amount of bond for temporary guardian of estate.

Same as personal: $250/cash, $500 personal surety; $1,000 corporate surety.

Depends on the estate. Personal surety for person is $100.

8. When is bond required to be posted?

PC1 and PC2: Not later than 20 days after appointment.

PC3: Not later than 3 days after appointment.

Not later than 20 days after appointment.

Before Letters are issued/ASAP

Within 20 days of appointment.

9. Must an Inventory and Appraisement be filed? If so, when?

As ordered. As ordered. Not usually, unless ordered. As ordered. Depends on circumstances.

23


10. Is a new application, notice, etc. required before a permanent guardian will be appointed?

Not if the application for permanent guardian is plead and prayed for in the original application and is established within 60 days of the temporary; but if the temporary terminates by operation of law, then a new application must be filed. Compliance with Chapter 1051 Subchapter C required.

Not if requested in original application. Ask for both when asking for the Temporary.

No, if pled in original pleadings and established within 60 days of temporary guardianship appointment. If temporary guardianship has terminated, new pleadings are required and all Chapter 1051 Subchapter C. notice requirements apply and a new medical letter is required.

Yes, if the temporary application did not also include a request for a permanent guardian.

K. Heirship

1. Must the application for determination of heirship be sworn to by the applicant?

Yes. Yes. See §202.007. Yes. Yes.

2. What heirship facts must be included in an application to determine heirship?

See §203.002. See §202.005(1)-(8) and §203.002.

See §203.002. Those required by TEC §§202.005 and 203.002.

3. What is the standard of proof for determining heirs?

See §§201.051-053. Generally preponderance of the evidence. Clear and convincing evidence for non-marital/non-acknowledged children of father. §§201.052 and 201.053.

See §§ 201.051-053. See §§ 201.051-053.

24


4. How many witnesses must testify to the heirship facts?

As a rule, at least two disinterested witnesses.

No minimum or maximum number.

As a rule, at least two disinterested witnesses.

Two witnesses, one being disinterested provided that the applicant makes two disinterested witnesses available to the AAL to question.

5. When will the court appoint an attorney ad litem?

Upon return of publication notice.

Upon filing of application. At filing. As soon as the clerk issues posted citation provided that applicant has deposited $400 with the clerk to pay or offset the cost of the AAL.

II. ADMINISTRATION

A. Inventory and Appraisement and List of Claims

1. Must the separate and community property be set out separately?

Yes. Yes. Yes. Yes if Inventory is required. Court will comply with new law allowing affidavits in lieu of inventory for decedents dying after 9.1.11 provided representative complies with TEC §309.051(a)(2).

2. Must account numbers be included?

Only the last four digits. Only last four digits. Yes, enough to identify account.

Only last four digits.

25


3. Must the location of banks and other financial institutions be listed?

Yes. Yes. Yes. Yes.

4. Must the legal description of mineral interests be included?

Yes. Yes. Sufficient to locate/identify the property.

Enough information to ascertain location; interest and description is okay.

Yes.

5. Must legal descriptions of real property be included?

Dependent – yes.

Independent – street address only.

Dependent – yes. Sufficient to locate/identify the property.

Independent – street address only..

Yes. Dependent – yes.

Independent – street address only.

6. What claims should be listed?

Only claims owed to estate required by code.

a. Note/loan – include a §309.052 statement.

b. Business practice – include accounts receivable.

Known claims due or owing to the estate. §309.052.

Those against the estate per §309.052.

Only claims owed to estate required by code.

7. Must both co-executors sign the inventory?

Yes. If one executor fails to sign the inventory, a notification letter will be sent giving such co-executor 60 days to sign before he or she is removed by the Court.

Yes. If one executor fails to sign the inventory, a notification letter will be sent giving such co-executor 60 days to sign before he or she is removed by the Court.

Yes. Yes. If one executor fails to sign the inventory, a notification letter will be sent giving such co-executor 60 days to sign before he or she is removed by the Court.

26


8. Will the Court grant an extension of the deadline to file the inventory?

PC1 and PC2: Yes, if the personal representative agrees that the deadline for presenting claims pursuant to §308.054 or §1153.004 shall be at least sixty days after the inventory is filed.

PC3: Yes, but on a case by case basis.

Yes. Yes. Yes, court will grant one extension if nobody objects. However, subsequent extension request must be set for hearing.

9. In an independent administration, will the Court approve the inventory, appraisement and list of claims before the affidavit or certificate required by Chapter 308 Subchapter A has been filed?

No. No. No. No

10. Is an inventory required of a successor dependent administrator?

Yes, with values as of date of qualification.

Yes. Yes, per §361.155. Yes with values as of date of qualification.

11. Must a supplemental or amended inventory be signed and sworn to by the personal representative?

Yes. Yes. Yes. Yes

27


B. Claims Procedure in Dependent Administrations

1. Once approved, is an Application and Order required to pay claims?

Yes. Yes. Yes. Yes

2. Is an order needed to approve and classify claim?

Yes. Yes. Yes. Yes

3. Must claim be authenticated?

Yes, per §§355.004-006 or §§1157.004-006, as applicable.

Yes. Yes; See §355.005; See §1157.004 in guardianships.

Yes

28


4. If the administrator allows a secured claim, will the Court require a hearing before approving the claim?

PC1 and PC2: Yes, if the claim is not accompanied by exhibits showing the amounts of principal and interest paid by the debtor, the remaining debt, the manner in which accrued interest is calculated, and the basis for any additional charges, fees or expenses.

PC3: All secured claims must be properly presented, authenticated and supported by exhibits pursuant to §§ 355.005, 355.059; 355.151-60.

No. No. No, unless someone objects to the allowance of the claim.

5. Will the Court approve an applicant’s secured claim (allowed by the administrator) if it includes the administrator’s fee and expenses incurred by the administrator (including attorneys’ fees)?

No, unless the estate is insolvent.

Yes in some circumstances. Case by case basis. No

29


C. Investments

1. Are investments in brokerage accounts allowed?

Yes, in compliance with §§ 1161.001-006; and §§1161.103-106.

Yes. Compliance with §§ 1161.001-006; and §§1161.103-106 required.

Yes. Must comply with §§ 1161.001-006; and §§1161.103-106., et al.

Yes, in compliance with §§ 1161.001-006; and §§1161.103-106.

2. Is a money market fund allowed for guardianships?

Yes. Yes. Compliance with §§ 1161.001-006; and §§1161.103-106 required.

Yes. Must comply with §§ 1161.001-006; and §§1161.103-106., et al.

Yes

D. Accounting

1. What accounting period must be used?

Not less than 12 month period with variation in accounting period allowed if in the best interest of estate.

Date of qualification starts accounting period. Modification/Change of accounting period is generally granted upon request.

Date of qualification plus 364 days.

For guardianships the 12 month period beginning with the date of qualification of the guardian. The accounting date may be changed to better coincide with monthly bank statements upon application to the court.

2. May accounting refer to previous year's accounting or inventory to begin accounting?

No, must report the assets on hand and, once balanced, it should match the precious inventory or accounting. If not, the discrepancy must be explained.

Yes, but must report assets on hand.

Yes, if a simple estate. No, must report the assets on hand and, once balanced, it should match the previous inventory or accounting. If not, the discrepancy must be explained.

30


3. In guardianship, must receipts be allocated between income and principal?

Yes. Yes. Yes. Goes directly to commissions.

Yes.

4. What support must be shown for disbursements?

a. Order - date should be noted on accounting.

b. Order not necessary for taxes, court costs, bond premium or insurance.

Photocopy of instrument used to make disbursements.

Prefer vouchers or copies thereof.

a. Order - date should be noted on accounting.

b. Order not necessary for taxes, court costs, bond premium or insurance.

5. What is necessary to show bank verification?

Original signed letter stating balance on hand on accounting ending date. No fax allowed.

Original signed letter stating balance on hand on accounting ending date. No fax allowed.

Sworn original plus balance information.

Original signed letter stating balance on hand on accounting ending date.

6. Is a general order approving account satisfactory to approve attorney fees and commissions?

No, must have specific Order Approving Annual Account and ordering payment of commission and attorney’s fees with the specific amount of the commission and fees stated. A finding that the estate was managed in compliance with the Code is required.

No, must have specific Order Approving Annual Account and ordering payment of commission and attorney’s fees with the specific amount of the commission and fees stated. A finding that the estate was managed in compliance with the Code is required..

No. No, must have specific Order Approving Annual Account and ordering payment of commission and attorney’s fees with the specific amount of the commission and fees stated. A finding that the estate was managed in compliance with the Code is required.

7. Is an order required to renew letters of guardianship?

Yes, include language in order approving annual account.

Yes. Yes. Yes, include language in order approving annual account.

31


8. Must personal representative approve application to pay fees?

Yes. Yes Yes. Must be sworn to. Yes

9. May attorney give notice of final account?

No. §362.005 only authorizes personal representative.

No. No. See §362.005. No. §362.005 only authorizes personal representative.

10. How must notice of final accounting be sent?

Certified mail, return receipt requested, restricted delivery.

Certified mail, return receipt requested.

Certified mail, return receipt requested plus citation according to Texas Estates Code.

Certified mail, return receipt requested, restricted delivery.

11. What proof of notice of final accounting must be given to the Court?

Affidavit of personal representative with copy of notice and original green cards attached.

Return card and affidavit of personal representative.

Returned cards plus Affidavit of personal representative.

Affidavit of personal representative with copy of notice and original green cards attached.

12. When heirs waive notice of a final accounting under §362.005, will the Court require the heirs to also confirm or ratify the final account?

Yes, if irregularities in accounting and/or waiver of audit is sought.

Yes, if irregularities in accounting and/or waiver of audit is sought.

No. Yes, if irregularities in accounting and/or waiver of audit is sought.

32


13. What is required to show that bond premiums and taxes have been paid and that tax returns have been filed?

Affidavit in compliance with §§359.001-003 and §1163.005.

Affidavit in compliance with §§359.001-003 and §1163.005

Sworn statement included in annual accounting. See §§ 359.001-003 and §1163.005.

Affidavit in compliance with §§359.001-003 and §1163.005, along with a canceled check for bond premium or bond premium receipt showing payment.

14. When must the waivers be signed?

After the accounting is filed. After the accounting is filed. Before hearing and after filing. After the accounting is filed.

15. If proper waivers, confirmations, ratifications are filed, will the Court still audit the accounting?

Yes. Yes. Yes. Yes

16. Must final accounting include all claims presented as well as whether they were allowed and approved, their classification and whether they were paid?

Yes. Yes. Yes; it would be in the best interest of the Guardian to do so.

Yes

17. Are receipts required to be filed with a report of compliance?

Yes. Yes. Preferred if large distribution. Yes

33


E. Attorney Fees

1. Must an attorney who is serving as a fiduciary file a Notice of Intent to Seek Dual Compensation in order to be paid attorneys’ fees?

Yes. Yes. Yes. No.

2. Must an attorney who is seeking dual compensation as fiduciary and attorney submit time records segregating time spent on acts taken as fiduciary and acts taken as attorney?

Yes. Yes. Yes. Yes

3. Must the application be signed and filed by the personal representative?

Yes. Yes. Yes, plus sworn verification by personal representative. See §1155.103.

Yes

34


4. What must the attorney submit as proof of fees?

a. If fees are less than $1,000 - invoice.

b. If fees are between $1,000 and $2,500 - itemized statement and affidavit from attorney plus an affidavit from the attorney plus an affidavit from an attorney not in original attorney's firm.

c. If fees are greater than $2,500 - itemized statement and affidavit from attorney plus an affidavit from the attorney plus two affidavits from attorneys not in original attorney's firm.

d. See attached attorney fee guidelines.

Itemized statement. Mandatory information

sheet--it is required plus

actual billing statement.

The attorney must submit an itemized statement that includes the hourly fee being charged, the amount of time spent on each item in the invoice and the total hours spent. If the fees are over $1,000, the application needs to be sworn to. If the fees are large enough the court will request a hearing

5. Will the Court require a hearing on the fees if they are uncontested?

No, unless fees appear to be unreasonable or excessive in relation to the amount of service performed.


Only if after audit, they appear excessive, improper or high. We like to have a record made.


35


6. If an attorney is representing a client who is defending a will under §352.052, will the Court require a hearing to prove that the attorneys' fees were reasonable and necessary?

That testimony should be made at the time of trial.

That testimony should be made at the time of trial.

Usually. That testimony should be made at the time of trial.

7. If the fees are contested, is a hearing required to approve the fees?

Yes. Yes. Yes. Yes

Helpful links: Dallas County Clerk Probate Filing Fees: http://www.dallascounty.org/department/countyclerk/feesprobate.php Dallas Probate Court: http://www.dallascourts.com/forms/frmCtsProb.asp?court=1 Dallas Probate Court No. 2: http://www.dallascourts.com/forms/frmCtsProb.asp?court=2 Dallas Probate Court No. 3: http://www.dallascourts.com/forms/frmCtsProb.asp?court=3 Dallas County Online Record Search: http://www.dallascounty.org/applications/english/record-search/rec-search_intro.php Collin County Probate: http://www.co.collin.tx.us/probate/index.jsp

36

Collin County Records Inquiry: http://cijspub.co.collin.tx.us/default.aspx Denton County Probate Court: http://dentoncounty.com/dept/main.asp?Dept=22 Denton County Records Inquiry: http://justice1.dentoncounty.com/PublicAccess/default.aspx Tarrant County Probate Court No. 1: http://www.tarrantcounty.com/ePC01/site/default.asp Tarrant County Probate Court No. 2: http://www.tarrantcounty.com/ePC02/site/default.asp Tarrant County Probate Courts Fees: http://www.tarrantcounty.com/eprobatecourts/cwp/browse.asp?a=766&bc=0&c=43896&eprobatecourtsNav=| Tarrant County Probate Court Public Browser: http://www.tarrantcounty.com/ecountyclerk/cwp/view.asp?A=735&Q=427507

Documents

Dallas and Neighboring County Probate Court Local … and Neighboring County...Dallas and Neighboring County Probate Court Local Guidelines . ... person, if all heirs sign court consent