The probate process begins when an executor named in a decedent's will submits the will to probate court. The court will almost always appoint an executor the decedent nominated unless someone successfully challenges that nomination. Among other duties, the executor is charged with gathering and inventorying the estate assets, paying the decedent’s final debts and distributing the remaining property to beneficiaries as instructed in the will.
In Texas, a decedent may spell out the specific amount of compensation an executor should receive in the terms of his will. If the will does not specify an amount of compensation, rates set by the Texas Probate Code will apply. Under the law, executors are entitled to receive five percent commission on the amounts they collect and pay out in cash while administering the estate, as long as the court finds the executor's duties were properly carried out. However, an executor's compensation may not exceed five percent of the total fair market value of the estate.
Because Texas' method for determining executor compensation is based completely on cash flow through the estate, it can create some unusual results. The Texas Probate Code identifies several types of assets that are specifically excluded as cash for executor compensation purposes: money the testator had on hand at the time of his death; money held for the decedent in a checking account, savings account, certificate of deposit or money market account; life insurance proceeds; and bequest payments made to beneficiaries. To fairly compensate an executor, Texas probate courts are permitted to reasonably compensate an executor if the statutory compensation method is unreasonably low or the executor manages a business on behalf of the estate.
The Texas Probate Code does not specifically address whether the five percent compensation rate may be applied to executors acting independently, without probate court supervision. In such cases, executors may determine their fees without using this formula; executors may request reasonable compensation or reach an independent agreement with the beneficiaries.
Executors often incur ordinary expenses during estate administration, such as the cost of selling or storing personal property. The executor is entitled to reimbursement from the estate for such expenses as long as they are reasonable and necessary. However, if the executor expends triple the amount normally spent for a certain service or spends money on something that isn't necessary for administering the estate, for example, the beneficiaries may challenge the reimbursement. Attorneys fees incurred by the executor for defending claims against the estate also constitute reimbursable expenses.