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My father recently died. He has a will. The executor has declined. Now what do I do?

Kerrville, TX |

I don't have the resourses to pay an attorney "up front". I have talked to the banks and they will not allow me the funds needed even to submit the will to a court. I am in Texas. What can I do?

Attorney Answers 3

  1. Best answer

    Usually a will nominates an executor and then a second priority executor who steps in if the first nominated executor declines or fails to qualify. If the first has declined, and the second has as well, or there is no second, the declining executor may renounce or waive his right to serve in favor of another qualified person. If the declining executor doesn’t want any involvement and doesn’t want to do a waiver of right to serve, any interested person may apply to admit the will to probate. Probate Code Section 77 lists the order of priority for appointment as executor which is generally nominated executor first, then surviving spouse, primary beneficiary, any beneficiary, next of kin and so on.

    There is a statute of limitations on probating a will. You should speak to an attorney about this, so you do not find yourself stuck with intestacy distribution of your father’s assets.
    With a limited exception, Texas courts do not allow you to represent a probate estate “pro se” or without an attorney. An executor must be represented by an attorney, so you need to get one somehow. The only exception is when probating the will as muniment of title is appropriate and you are the only beneficiary, then you may proceed without an attorney. Even then, you would want an attorney to tell you whether muniment of title is the appropriate procedure.

    As far as lower cost options, I would contact various organizations to see if you can get pro bono or reduced fee services. I recommend contacting the State Bar of Texas, Legal Aid Society or Hotline, your local bar association, your applicable Legal Aid office, or Texas Legal Services Center. Even if you find an attorney willing to take your case without an advance of funds, I cannot imagine anyone would be willing to take it without at least an advance of the filing fees.

    Good luck! I hope this is helpful.

    Jessica Newill
    Newill Law Firm
    (210) 348-3906

    This answer contains general information. None of the information contained in this communication is intended as legal advice. You should neither act nor refrain from acting based on information obtained from the exchange of messages on this website. None of the information contained in this answer is privileged or confidential. You should retain an attorney to provide legal advice regarding this issue. Newill Law Firm provides estate planning and probate services. Call (210) 383-0546 for a FREE initial consultation.

  2. A Will often provides the names of those who are nominated to serve as successor executors when someone declines to serve. If no one else is nominated, the rule in California is to have the court confirm the appointment of someone who is eligible and qualified to serve as successor. If you don't have the funds to hire a lawyer, you may be able to obtain a "hard money loan" on real estate if you qualify which will give you some cash with which to handle your father's affairs.

    I hope this helps.

    Please remember to designate a “best answer” to your question.

    Mr. Port is licensed to practice law throughout the state of California with an office in Los Angeles where he handles probate, tax disputes, estate planning and business transactions. He is authorized to handle IRS matters throughout the United States. His phone number is 310.559.5259, his email address is For more tax, probate, estate planning and business articles visit his website, his tax blog at and his probate blog at

  3. where did your father live?

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