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Who Can Serve As A Personal Representative In Texas?

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The Texas Estate Code sets forth those persons who can serve as a personal representative of a Texas probate, the order of entitlement, and those persons who are not qualified to serve.

Who Has Priority To Serve As a Personal Representative In Texas?

The order of persons entitled to letters testamentary or of administration, if qualified, is:

(1)  the person named as executor in the decedent’s will;

(1-a) the person designated as administrator as authorized under Section 254.006;

(2)  the decedent’s surviving spouse;

(3)  the principal devisee of the decedent;

(4)  any devisee of the decedent;

(5)  the next of kin of the decedent;

(6)  a creditor of the decedent;

(7)  any person of good character residing in the county who applies for the letters;

(8)  any other person who is not disqualified under Section 304.003; and

(9)  any appointed public probate administrator.

Texas Estates Code § 304.001.  Therefore, priority is first given to those persons nominated by the testator to serve as personal representative in the will or designated as administrator.  After that, the surviving spouse is entitled to serve, followed by the principal devisee.

Who Are Next of Kin In Texas?

For purposes of §304.001(5), entitling next of kin of the decedent to appointment, the decedent’s next of kin is determined in accordance with order of descent.  Therefore, the person nearest in order of descent has first priority, etc.

The order of descent is set forth in Texas Estates Code §201.001, is the Decedent’s:

  • Children
  • Children’s descendants
  • Father and Mother
  • Siblings
  • Sibling’s descendants
  • Grandparents

Next of kin for this section also includes “a person and the person’s descendants who legally adopted the decedent or who have been legally adopted by the decedent.”  § 304.001(c).

What Happens If Persons Are Equally Entitled to Serve As Personal Representative?

If multiple persons are equally entitled to letters testamentary or of administration, the Texas Probate Court:

(1) Shall grant the letters to the person who, in the judgment of the court, is most likely to administer the estate advantageously; or

(2) May grant the letters to two or more of those persons.

Who Is Disqualified From Serving As Personal Representative In Texas?

Under the Texas Estates Code, § 304.003, a person is not qualified to serve as an executor or administrator if the person is:

(1)  incapacitated;

(2)  a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored;

(3)  a nonresident of this state who:

(A)  is a natural person or corporation; and

(B)  has not:

(i)  appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or

(ii)  had that appointment filed with the court;

(4)  a corporation not authorized to act as a fiduciary in this state; or

(5)  a person whom the court finds unsuitable.

Do You Have To Serve As Personal Representative If You Are Entitled To Priority?

No, you do not have to serve as personal representative in Texas just because you are next in line for appointment.

A person entitled to priority may renounce the right to the letters in favor of another qualified person in open court, or by a power of attorney authenticated and filed with the county clerk.  Texas Estates Code § 304.002.

 

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