Can the Executor of a Will Put Property in Probate?

By Heather Frances J.D.

When a person dies, his assets must be distributed to the appropriate beneficiaries or heirs. To accomplish this, most of these assets go through the probate process first. This process, often administered by the courts, varies according to each state’s laws. Typically, title to a deceased person’s property cannot be changed without first going through the probate steps.

When a person dies, his assets must be distributed to the appropriate beneficiaries or heirs. To accomplish this, most of these assets go through the probate process first. This process, often administered by the courts, varies according to each state’s laws. Typically, title to a deceased person’s property cannot be changed without first going through the probate steps.

Probate Assets

Probate is the legal process that passes ownership from the deceased person to his heir or beneficiary. It requires notifying the deceased person’s creditors and other potentially interested parties before the deceased’s property is officially transferred. Not all assets are included in the deceased’s probate estate since property that passes by contract or deed is considered non-probate property. For example, the proceeds of life insurance policies that go directly to a named beneficiary do not pass through the probate estate. Similarly, some forms of jointly owned real estate pass directly to the remaining owners when one owner dies. Neither the court nor an executor has control over these non-probate assets, and they cannot be converted to probate assets.

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Executor

Executors are individuals who manage the probate process for the deceased person’s estate. Typically, the court appoints the executor named in the deceased’s will unless there are objections, but that person has no power to act until he is officially appointed by the court and provides a bond, if required. Once appointed, the person named as executor begins the probate proceeding by filing an application with the probate court where the decedent lived at the time of his death, along with the will if it has not been filed yet. If the deceased did not leave a will, so no executor was named, the court will usually appoint a close relative to act on behalf of the probate estate. This person is called a personal representative or estate administrator.

Opening Probate

The executor must follow state laws and regulations when managing a probate estate, and these can vary from state to state. The probate court will oversee the executor’s actions in most cases. For example, state laws typically require the executor to notify potential creditors in a certain manner, and pay only valid creditors’ claims out of the estate assets. Executors usually have the duty to manage the estate assets until they are finally distributed, including operating the deceased's business or maintaining property. He must do so with the same level of care that a reasonable person would use when managing his own property. If the executor does not exercise sufficient care dealing with the deceased’s assets, he can be removed from his position.

Selling Property

The executor has a duty to pay valid claims from the estate’s assets. Claims can include the deceased’s final expenses, credit card balances, personal loans or other debts. The executor may have to sell some of the estate’s assets to pay these claims. If any assets are left in the estate after the creditors are paid, ownership will pass through the probate proceeding to the beneficiaries according to the terms of the deceased’s will. Depending on state law and the type and value of the asset, the executor may have to obtain prior court approval before selling any estate property.

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Administrator vs. Executor in a Probate

References

Related articles

How to Settle a Personal Estate

When a person creates a will, she often includes language in the will identifying a person who will serve as the executor of the estate when the will creator dies. A person who dies without a will is said to have died “intestate.” Whereas an executor handles estate assets under a will, an administrator handles a deceased person’s estate if the person died intestate. Although the titles differ, both executors and administrators are responsible for managing the distributing the decedent’s estate.

Wills in Probate Court

When a person dies, the instructions in his will must be carried out in probate. Probate is overseen by state courts, and has a twofold purpose: to check that a will meets the requirements for state law, and to ensure that the instructions in the will are followed. How long probate lasts depends on the details involved in each estate.

Do You Have to Probate a Will According to the Laws in the State of Texas?

When someone dies, Texas law requires that his probate assets be distributed to his heirs or beneficiaries, so probate — the court-supervised process of distributing a deceased person's assets — is required for most estates in Texas. Some assets, such as life insurance or jointly owned assets, are considered nonprobate assets that do not have to go through the probate process, but other assets like personal property and vehicles usually require probate.

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