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Independent Administration

Independent Administration. Creation of Independent Administration. 1. Express language in the will PC § 145(b) EC § 401.001 In re Dulin’s Estate – p. 193 Questions 1-2 – p. 196 Relevance of mere bond waiver. Creation of Independent Administration.

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Independent Administration

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  1. Independent Administration

  2. Creation of Independent Administration • 1. Express language in the will • PC § 145(b) • EC § 401.001 • In re Dulin’s Estate – p. 193 • Questions 1-2 – p. 196 • Relevance of mere bond waiver

  3. Creation of Independent Administration • 2. By agreement of all will beneficiaries • PC § 145(c) • EC § 401.002 • 3. By agreement of all heirs • PC § 145(e) • EC § 401.003

  4. Creation of Independent Administration • Obtaining agreement of distributees • PC § 145 • EC § 401.004 • Examples: • Minor = guardian of the person • Testamentary trust = current income beneficiaries • Life estate = life tenant

  5. Creation of Independent Administration • Testator may prohibit independent administration • PC § 145 • EC § 401.001(b)

  6. Creation of Independent Administration • Court may waive bond • Even if will did not provide for bond waiver • Even if decedent died intestate • PC § 145(p) • EC § 401.005

  7. Independent Administration[continued]

  8. Basic duties of Independent PR • 1. Act as a fiduciary and in good faith.

  9. Basic duties of Independent PR • 2. File inventory, appraisement, and list of claims (or affidavit in lieu thereof) within 90 days of qualification.

  10. Basic duties of Independent PR • 3. Set aside homestead, allowances, and exempt property • PC § 146 • EC § 403.001

  11. Basic duties of Independent PR • 4. Creditors • PC § 146 • EC Chapter 403, subchapter B • Give notices as in dependent administration • Creditors have basically the same rights and duties • Classify and pay claims as in a dependent administration • Problems 1-3 (p. 199)

  12. Basic duties of Independent PR • 5. Selling estate property • PC § 145C • EC § 402.052 • Even without power of sale clause in a will, PR may sell estate property in the same situations that a dependent PR could sell. • PR can also get court to grant a power of sale with consent of distributees if: • No will provision • Intestacy

  13. Basic duties of Independent PR • 6. Accounting • Annual accounts are not needed. • Interested person may demand after 15 months • PC § 149A • EC § 404.001

  14. Basic duties of Independent PR • 7. Accounting & Distribution • Interested person may petition court after two years • PC § 149B • EC § 405.001

  15. Removal of Independent PR • Authority • PC § 149C • EC § 404.003 • Who requests? • Any interested person • Court on its own motion • Notice by personal service is required

  16. Removal of Independent PR • Grounds • Basically, same as for removal of dependent PR • In re Estate of Miller (p. 201) • Kappus v. Kappus (Tex. Sup. Ct.) • Legislative reaction

  17. Closing the Independent Administration

  18. Closing Independent Administration • No requirement that estate be closed. • Should PR close the estate? • Reasons yes • Reasons no

  19. Closing Independent Administration • 1. By Affidavit – The closing report • PC § 151 • EC § 405.005 • When • All debts paid (or paid as much as possible), and • Residue (if any) given to heirs and beneficiaries • Closing report is like a mini-accounting

  20. Closing Independent Administration • 1. By Affidavit – The closing report • Verified by affidavit • Court takes no action • No impact on PR liability • Future claimants cannot look to ex-PR • Burke (p. 210)

  21. Closing Independent Administration • 2. By distributeeapplication • PC § 152 • EC § 405.009

  22. Closing Independent Administration • 3. Judicial discharge • PC §§ 149D-149G • EC § 405.003

  23. Closing Independent Administration • 4. By operation of law • In re Estate of Teinert

  24. Closing Independent Administration • Partition • PR can go to court for help with partitioning estate property. • PC § 150 • EC § 405.008

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