Depending on the circumstances, removal of the executor of an estate in Texas can be difficult, but there are statutory grounds that make it possible.
The executor of an estate has fiduciary obligations to the beneficiaries of the estate and has many responsibilities including:
- Administration of the estate,
- Making an inventory of the estate within 90 days of their appointment,
- Paying the estate’s debts,
- Recovery of debts owed to the estate,
- Providing an accounting to the beneficiaries upon request (15 months after appointment), and
- Distributing the assets of the estate to the beneficiaries as identified in the decedent’s will.
The executor is often named in the will, but the person named in the will isn’t necessarily the best person for the job.
There are many reasons it may be necessary to remove the executor, including when the executor is not following the decedent’s wishes, taking property for their own use, not doing their job at all, or unable to do the job due to illness or other reasons.
What are Grounds to Remove an Executor of an Estate in Texas?
How do you remove the executor of an estate in Texas?
First, you must identify the statutory grounds for removal. Then, gather the evidence you will need to prove to the probate court that there are grounds for removal of the executor, and request that the court remove the executor and appoint a replacement.
The request can be made in the form of a motion, but it can also be made verbally even when the parties are in court on a different matter. For example, the Seventh District Court of Appeals found in In re Bell, No. 07-20-00220-CV (Tex. App. Sep. 15, 2021), that it was appropriate for the court to remove an executor if the proper grounds were present even though the parties were in court on a different matter and they did not request removal in their pleadings (the appellate court reversed the executors’ removal on other grounds, however).
There are two sets of grounds for removal of an executor in the Texas Estates Code: 1) removal with notice and 2) removal without notice.
Removal of an Executor Without Notice
Under Section 404.003 of the Texas Estates Code, the probate court is authorized to remove an independent executor, on the court’s own motion or the motion of any interested person, and without notice, when:
- The executor cannot be served with notice because their whereabouts are unknown, they are eluding service, or they live in another state and do not have a registered agent for service of process in Texas, or
- “[T]he independent executor has misapplied or embezzled, or is about to misapply or embezzle, all or part of the property committed to the independent executor’s care.”
In all other cases, Texas law requires notice to the executor before they can be removed from the estate.
Removal of an Executor with Notice
Section 404.0035 of the Texas Estates Code provides grounds when the court can remove an executor after providing notice, whether it is on the court’s own motion or the motion of an interested party.
On the court’s own motion and after providing 30 days’ written notice, the probate court can remove an executor if they:
- Failed to qualify “in the manner and time required by law,”
- Failed to return an inventory of the estate within 90 days (unless they are granted an extension by the court), or
- Failed to file the affidavit required by Section 308.004 of the Texas Estates Code.
On the court’s own motion or the motion of an interested party, and after providing notice to the executor, the court can remove an executor if they:
- Failed to make an accounting as required by law,
- Are proven “guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties,”
- Have become incapacitated, incarcerated, or otherwise unable to perform their fiduciary duties, or
- Have a material conflict of interest that makes them incapable of performing their fiduciary duties.
What is “Gross Misconduct” or “Gross Mismanagement” of an Estate in Texas?
Most of the grounds for the removal of an executor from an estate are self-explanatory. For example, the executor either did or did not file an inventory, an affidavit, or an accounting. They are either in prison or they are not.
But how do the courts define “misapplication,” “gross misconduct,” “gross mismanagement,” or “incapacitated?”
The Texas Supreme Court, in Kappus v. Kappus, 284 S.W.3d 831 (2009), says that “misapplication” and “embezzlement,” as used in Section 404.003 of the Texas Estates Code, have a related meaning and are grounds for removal when the executor was engaged in “subterfuge or wrongful misuse.”
The Court also defines “gross misconduct or gross mismanagement” as requiring proof of conduct “beyond ordinary misconduct and ordinary mismanagement,” and the court says the misconduct or mismanagement must be “glaringly obvious” or “flagrant.”
They go on to define “incapacitated” as “[a] person who is impaired by an intoxicant, by mental illness or deficiency, or by physical illness or disability to the extent that personal decision-making is impossible.”
If you need to remove or disqualify an executor of an estate in Texas, your probate and estates attorney at Murray-Lobb can help you to:
- Review the estate’s assets, debts, liabilities, and wishes of the decedent,
- Review the actions of the executor to determine whether there is a statutory ground for removal,
- Gather the evidence necessary to prove the grounds for removal to the probate court,
- Draft and file the legal documents requesting the executor’s removal and replacement,
- Negotiate with the executor’s attorney to seek a consent removal and replacement, and
- Make your arguments to the probate court on your behalf.
Please feel free to contact one of our Murray Lobb attorneys to obtain our assistance in the removal of an independent executor, probate administration, or other issues related to the probate process. We also remain available to help you with all your general corporate, construction law, business, and estate planning needs.