Estate planning usually includes writing a valid will and/or trust(s) and appointing an executor to administer the estate’s assets upon death of the decedent. It also ensures that the testator’s wishes are carried out as stipulated. When an estate planner chooses an executor, the decision is usually based on their strong relationship as well as an assumption that the executor has the skill and capacity to administer the estate as directed. In most instances, the executor is the best person for the job and performs duties as expected. At times, however, the executor may not be capable of the job or, worse yet, may be dishonest or fraudulent in his or her actions. Fortunately, when an executor is not competent, Texas probate courts have options to intervene.
Basic Qualifications
If a will names an executor, Texas probate courts rarely question the validity of that choice. When someone dies intestate, without a will, the Texas Estates Code 304.001 provides the order of preference for naming an executor of an estate. In either case, the executor must meet some basic requirements: The executor must be at least 18 years old, and the executor must have the capacity to perform the duties required to administer the estate. Tex. Est. Cod Ann. §§ 304.003, 1002. 017, 1002. 019. While a convicted felon may not serve as an executor, if a person has been pardoned and has had civil rights restored, then she or he is still qualified to be executor of an estate. Tex. Est. Cod Ann. § 304.003.
Accepted Reasons for Removal
Because the executor is named by the will or Texas probate court, rejection or removal of the executor is a formal process and requires evidence of specific types of misconduct. Personality conflicts may arise, or beneficiaries may otherwise disapprove of the executor’s actions, but probate courts require more concrete and dire reasons for rejecting or replacing an executor.
According to Texas Estates Code § 304.003, Texas courts may reject an executor even if that person is chosen in the will. If a chosen executor has a conflict of interest which negatively affects fiduciary duties to creditors and/or beneficiaries of the estate, a probate court has the option to reject that person.
A Texas probate court may also replace an executor if the situation warrants. Beneficiaries have recourse if they have proof that the executor is guilty of such behavior as stealing from the estate, undue influence, cutting someone out of the will, or overcharging the estate for expenses.
According to Texas law, an executor may be removed if she or he:
- “Fails to make an accounting which is required by law to be made;
- Is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties;
- Becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor’s fiduciary duties; or
- Becomes incapable of properly performing the independent executor’s fiduciary duties due to a material conflict of interest.”
Texas Estates Code § 404.035
Those seeking to remove an executor must identify the cause that warrants the removal and provide evidence to support the claim. The process includes a formal order of removal which is accepted or denied in Texas probate court.
For any concern about the executor of an estate, beneficiaries should reach out to an experienced probate attorney for insight and guidance. The solution may be as simple as a phone call to clarify miscommunication, or it may entail more serious responses, including litigation. In each situation, an attorney will work in the client’s interest to find the best result.
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