Usually, when a person leaves a Will designating an Executor or Executrix, the Executor is a person that the decedent was close to or trusted. However, there are times when the trusted Executor or Executrix may fail to perform his or her duties, has a conflict of interest, has become incapacitated, or has committed gross misconduct involving the estate. When this occurs, the Executor or Executrix may need to be disqualified or removed.
In this article, we will discuss disqualifying and removing an Independent Executor in Texas. If you are in the Austin, Round Rock, Cedar Park, or Pflugerville areas and have questions about Executor duties, contact probate lawyer Farren Sheehan for an initial consultation.
Removal of Independent Executor Without Notice
A probate court may remove an independent executor with or without notice. The probate court, on the court’s own motion or on the motion of any interested person, and without notice, may remove an independent executor when the independent executor cannot be served with notice or other processes because the independent executor’s whereabouts are unknown, he or she is eluding service, or he or she is a nonresident of Texas without a designated resident agent.
The court may also remove an independent executor without notice when sufficient grounds appear to support a belief that the 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.
Removal of Independent Executor With Notice
A probate court, on the court’s own motion, may remove an independent executor providing 30 days written notice. The notice of the court’s intent to remove the independent executor must be mailed by certified mail, return receipt requested, to the independent executor’s last known address and to the last known address of the independent executor’s attorney of record.
Reasons for removal of the independent executor must be stated in the notice. Valid reasons include when an independent executor neglects to qualify in the manner and time required by law, or fails to timely return an inventory of the estate property and a list of claims that have come to the independent executor’s knowledge or an affidavit in lieu of the inventory, appraisement, and list of claims, unless that deadline is extended by court order.
Furthermore, the probate court, on its own motion or on motion of any interested person, after notice and hearing, may remove an independent executor when the independent executor:
- Fails to make an accounting
- Fails to timely file the required affidavit or certificate
- Is proved to have been guilty of gross misconduct or gross mismanagement in the performance of his or her duties;
- Becomes incapacitated or is sentenced to jail and cannot properly perform his or her fiduciary duties
- Or becomes incapable of properly performing his or her fiduciary duties due to a material conflict of interest.
In applying the statutory criteria of “gross mismanagement” and “gross misconduct,” Texas courts do not attempt to define them for all cases or circumstances. However, the definitions include at a minimum: any willful omission to perform a legal duty, any intentional commission of a wrongful act, and any breach of a fiduciary duty that results in actual harm to a beneficiary’s interest.
How Sheehan Law, PLLC Can Help
If one is considering removing or disqualifying an executor, it is advisable to hire a probate lawyer to review the estate, the actions or omissions of the executor, and formulate a plan of action. A probate attorney can also prepare necessary legal documents, prepare arguments for the court, and interact with the executor’s attorney, if applicable.
Attorney Farren Sheehan in Pflugerville is experienced in all probate and non-probate matters, including advising on the duties of an executor or executrix. Call our offices today at (512) 251-4553, or fill out our online contact form with any questions you have regarding executors in the Travis County or Austin area, and we will be happy to set up a consultation to discuss.