February 16, 2018

Executor Not Required to Post Bond Absent Complaint

Probate Law Blog

Houston Probate Attorney

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Texas law allows for an informal probate process. This gives the executor a considerable amount of leeway to administer the probate estate. But as highlighted in the recent In Re Cassar, No. 14-17-00825-CV (Ct. App.–Houston 2018) case, there are instances when the probate court will order the executor to post a bond to ensure that the estate is properly managed.

Independent Administration

A last will and testament can provide for an independent administration or, if there is no will, an applicant to administer the estate can request an independent administration.

The independent administration provides a simplified method for administering a probate estate. It allows the executor or administrator to “step into the shoes” of the decedent when dealing with property of the estate. So it is not necessary for the court to authorize most acts when it comes to handling the estate property.

Requiring a Bond

Even in an independent administration, the probate court can order that the executor or administrator post a bond. This requirement is often waived in the decedent’s will or by the probate court in the absence of a will.

The probate court generally will impose a bond if it appears that the independent executor is mismanaging the property, has betrayed or is about to betray the independent executor’s trust, or has in some other way become disqualified.

Moving Probate Assets Out of the U.S.

The In Re Cassar case provides an example of this. In the case, the executor moved a substantial portion of the assets to Canada. The probate court found that he did not make the transfers in bad faith, rather, he was a Canadian citizen. The beneficiaries under the will that was probated were all also Canadian citizens.

Another party filed a will contest and asked the court to require a bond given the executor’s mismanagement of the estate. The probate court granted the motion and required the executor to post a bond or return the assets to the United States. The executor posted the bond.

No Bond Without a Complaint

The court case highlights the requirements for the probate court to order a bond. Specifically, the probate case resulted in the probate court entering an order for the bond twice. The probate court did not have a complaint that supported the second bond order, which was overturned by the appeals court.

The appeals court noted that the probate court cannot order a bond be posted without first having a complaint filed by a person who has a debt, claim or demand against the estate.

Do you need help with a probate matter in Houston or the surrounding area?  We are Houston probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, (713) 909-4906.  

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