Friday, August 21, 2009

What’s the First Thing an Executor under the Will Must Do?

Your relative has passed away and you’ve found her Will. After reading it, you realize that you’ve been named as the executor of her estate. What do you do now?

First, you need to realize that simply being named in the Will does not give you any legal authority to act on behalf of her estate. In order to obtain authority to act on behalf of the estate, you will need to file an application with the appropriate probate court. After notice has been given concerning your application, the probate court will hold a hearing and determine whether you qualify for appointment as executor of the estate. If you meet the qualifications, the court will then sign an order appointing you as the executor and authorizing the issuance of a document called “letters testamentary.”

You will also need to take an oath to uphold your legal obligations as executor of the estate. Now you have the legal authority necessary to gather the deceased’s property and begin the process of contacting banks, savings & loans, mortgage companies, credit card companies, tenants, government agencies, and all other persons to whom the estate owed money or who owed money to the estate. You also have the legal authority to transfer title, sell or otherwise dispose of the deceased’s property, at least to the extent that you are authorized by law and under the Will to do so.

You also have “fiduciary obligations” as a result of being appointed executor of the estate. These are important duties and obligations, which should not be taken lightly. Most probate courts will provide you with some guidance concerning your duties as executor, and explaining the consequence of undertaking those obligations. An example of the type of instructions provided by the Travis County Probate Court can be found at

As we’ve mentioned in other entries in this Blog, there are a large number of different probate procedures available in Texas. Because of the complexity in determining the correct procedure, and to ensure that you are provided with guidance in meeting your duties as an executor, we strongly recommend seeking the advice of an attorney who is familiar with probate proceedings prior to taking any action on your own. A good probate attorney can help you save time and money, as well as avoid confusion or conflicts related to your duties as executor. The probate attorney’s fees are paid out of any property in the deceased’s estate, not by the executor. It’s advice well worth seeking.