What happens if you are not married but have a child with someone, and then you die when the child is a minor? To further complicate it, let’s assume you do not have a will. Who has the right to serve as the personal representative of your estate?
If you are survived by your mother, would your mother have the right to serve as your personal representative? Or would the mother of your minor child have the right to serve?
The In re Tovar, No. 08-22-00028-CV (Tex. App. – El Paso [8th Dist.] 2023) case helps to answer this question.
Facts & Procedural History
The background of this case is relatively straightforward. The decedent passed away intestate, leaving behind a minor child and the child’s mother. Importantly, the decedent and the child’s mother were not married.
Due to the child’s age, they were unable to serve as the independent administrator of the estate. Consequently, the decedent’s mother, who also happened to be the child’s grandmother, submitted an application to become the estate administrator. In response, the child’s mother filed a counter-application, seeking to assume the role of estate administrator.
Subsequently, the probate court proceeded with the heirship portion of the case, culminating in a judicial determination that the minor child was the decedent’s sole heir, thereby entitling them to the entire estate. Following this determination, the court then deliberated on the competing applications for probate, ultimately appointing the decedent’s mother as the estate administrator.
In light of this decision, the child’s mother initiated an appeal with the aim of overturning the appointment of the decedent’s mother.
Qualifications of a Personal Representative
A personal representative is the person tasked with administering the decedent’s estate. This confers on the administrator quite a bit of discretion in how the estate is to be administered.
Section 304.003 of the Texas Estates Code outlines the conditions under which someone can be disqualified from administering an estate:
- A person who is incapacitated
- A person who is a felon and whose rights have not been restored or otherwise allowed by the court
- A nonresident of the state who has not appointed an in-state resident agent
- A corporation not authorized to act as a fiduciary in the state
- A person whom the court finds unsuitable
Under Texas law, a minor is considered to be incapacitated. In Texas, the age of majority is 18 years old. There are nuances for this, such as when a child is emancipated, enlisted in the U.S. military, etc. But generally, a minor child is not able to serve as the personal representative of an estate in Texas.
Iit should also be noted that in this case, neither the decedent’s mother and the child’s mother were disqualified from serving given these rules.
Personal Representative When There is No Will
This brings us to Section 304.001 of the Texas Estate Code. This statute explains who can be appointed as the personal representative when there is no will.
The statute generally follows the rules for the next of kin, with the person nearest in order of descent being first:
- the decedent’s surviving spouse;
- the principal devisee of the decedent;
- any devisee of the decedent;
- the next of kin of the decedent;
- a creditor of the decedent;
- any person of good character residing in the county who applies for the letters;
- any other person who is not disqualified under § 304.003; and
- any appointed public probate administrator.
In this case, the decedent was not married and did not have a surviving spouse. The second category, for the principal devisee of the decedent, would have been the minor child. Since the minor child was disqualified, the next category is the next kin of the decedent. The next kin was the decedent’s mother.
What About Common Law Spouses?
This outcome can be different for common law spouses. In this case, the unmarried partner did not assert that she had a marriage under common law. Had she done so, and been able to prove it, she may have not only been appointed as the personal representative, she may also have been entitled to inherit part of the estate.
To establish a common law marriage in Texas, certain key elements must be met. These elements include:
- Agreement: The couple must mutually agree to be married. Both individuals must have the present intent and consent to enter into a marital relationship.
- Cohabitation: The couple must live together as spouses. Cohabitation generally means sharing a residence and living together as if married.
- Representation to Others: The couple must represent themselves to others as married. This includes introducing each other as spouses, using the same last name, and filing joint tax returns as a married couple, among other actions that demonstrate a marital relationship.
It is not clear from the facts if any of these factors were or could have been established. Regardless, this is one avenue that is often used to deal with this type of situation.
Other Considerations for Minors Who Inherit
In cases where minors inherit property, several alternative solutions can be explored to manage disputes between those who want to serve as the personal representative.
One option is Section 1351 of the Texas Estates Code, offering a streamlined process for property sales while bypassing the intricacies associated with formal guardianship. Importantly, this approach can also serve as a means to avoid probate proceedings.
Under this statute, parents or managing conservators can assume responsibility for property sales on behalf of minors, especially when the net property value remains below the $250,000 threshold. This could allow the minor child’s mother to accomplish their goals without having to get into a dispute as to who is to serve as the personal representative.
The guardianship rules may also provide a remedy. The court can appoint an attorney ad litem or guardian ad litem, ensuring the protection of the minor’s interests during property transactions. This can allow the guardian to take over the property belonging to the minor.
Furthermore, another alternative worth exploring is the establishment of a management trust. This can potentially obviate the necessity for both guardianship proceedings and probate in specific scenarios. Such trusts offer a flexible and tailored approach to managing assets on behalf of minors, providing a more streamlined and efficient path forward in ensuring the welfare of the inheriting minor.
The Takeaway
This case explains who has priority when a parent of the decedent and a parent of the decedent’s minor beneficiary both want to serve as the personal representative. Absent a will or a common law marriage, the decedent’s parent is entitled to serve over the wishes of the decedent’s minor children. This underscores the need for a will that names an executor as selected by the decedent. Absent a will, there are other options, such as the application to sell minor’s property and guardianship that may provide an alternative solution.
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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
