San Antonio Express-News
May 17, 2005

Bank as Executor - &- Delay in Probate

copyright 2005, Paul Premack

You are fortunate to trust your brother with the details of administering your estate and distributing it to the heirs named in your Will. Realizing that you need to name one or more alternate Executors as backups, however, becomes a challenge when there is no one you trust to do that job.

Even so, you have several alternatives. First, you can look to the heirs named in your Will. Although I have not seen your Will, you must have identified certain individuals or charitable organizations to receive your estate. Perhaps one of those persons is trustworthy enough to act as Executor. Perhaps you could ask a representative of one of the charitable organizations to act as Executor.

Second, you can name a bank trust department to act as Executor. Though you don’t want to establish a trust, and it is logical to assume a trust department would require a trust before they’ll provide assistance, many trust departments recognize that acting as court appointed Executor is also a valuable service. In San Antonio, for instance, there are several banks that offer "estate settlement" services, including:

Dear Mr. Premack: My Mother passed away in May 2004 and her Will was filed into Probate Court on June 26th. Her estate was valued at over three million dollars, and is to be equally divided three ways. There was no debt. What is a reasonable period of time before everything should be finalized for the distribution of assets to the heirs? T.L.S.

Under Texas law, probate can go quickly if the Will was written to allow independent administration. An Executor can have letters testamentary within a month if things are rushed by the attorney. If the Will does not allow streamlining, it can cause delays. Some Wills require heirs to outlive the decedent by six months before they become entitled to a distribution.

Many delays occur because the estate’s business may be complex. For instance, federal estate taxes are not due until nine months after the date of death, and can be extended if there is difficulty in obtaining appraisals or other necessary details. Hence, it is not uncommon for an estate like your mother’s, valued at over three million dollars, to take 12 to 24 months before distributions are made.

The delay you have experienced is not yet usual, since a variety of circumstances could adequately explain it. The Executor should be able to tell you what tasks are unfinished and of the date you might expect to get your share.