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Young business man signing a last will and testament document in the office.


Redding Law Office June 3, 2022

Probate is the process of administering the estate and settling the affairs of someone who has recently passed away. If that person leaves a will, the will generally designates someone to be the personal representative of the deceased. The probate court will then name the personal representative to be the executor of the estate. If the person dies without a will, the court will name an administrator, or executor, to settle the estate. Generally, this will be a family member.

As a loved one of the deceased, you may find yourself troubled by the actions of the executor during probate proceedings. You may disagree with decisions or fear that the executor is taking personal advantage of the process or squandering assets that the executor has a fiduciary duty to protect. What can you do?

A beneficiary of the estate (whether named in the will or in line to be so considered by the state laws of intestacy for those who die without a will) can petition the court for the executor to be removed and replaced. The court itself will sometimes step in and replace an executor if that person is not properly living up to the duties required under probate administration.

If you’ve lost a loved one and you’re going through probate in or around Southlake, Texas, and you disagree with some decisions or actions of the executor, contact Redding Law Office to discuss your options. Attorney Chelsea Redding will work with you to protect your rights and help keep the actions of the executor in line with legal and ethical standards.

Redding Law Office also proudly serves clients in Tarrant County and Denton County, as well as in the surrounding cities of Flower Mound, Keller, and Colleyville.

Texas Law & Valid Reasons to Remove an Executor

Texas law lists six reasons for the removal of an executor. The first three concern statutory duties. For instance, if the executor fails to file within 90 days “an inventory of the estate property and a list of claims that have come to the representative's knowledge,” the probate court itself can remove and replace the executor.

Another reason for court removal, according to the code, is incapacitation, or in the words of the relevant section, when he or she “becomes incapable of properly performing the duties of the representative's trust.”

Two of the six reasons give leeway to loved ones and beneficiaries to petition for the executor to be removed, and these reasons all involve gross misconduct, specifically if the executor “has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, all or part of the property entrusted to the representative's care.”

In other words, personally enriching oneself as an executor at the expense of the beneficiaries might be cause for removal, as might gross mismanagement whereby assets are lost or squandered. For example, a Texas court held that an executor had breached their duty of good faith by renting out estate property for half of what the late owner charged and then charging a separate transaction fee for selling estate property.

In some cases, beneficiaries might seek to challenge an executor on the basis of a conflict of interest. Though executors are also often beneficiaries of the estate, that fact in and of itself is not generally viewed as a conflict of interest. 

The Texas Supreme Court has actually weighed in on this and ruled that a potential conflict of interest is not enough to oust an executor. In addition, the Estates Code is clear on the grounds for removal of an executor – “gross misconduct or mismanagement in the performance of the representative's duties.”

Taking Action

The Texas Supreme Court, in reviewing cases involving the removal of executors, has consistently emphasized the use of the word “gross” in the Estates Code as the standard for removal. Thus, there is a high bar for removing an executor. It has to go beyond personality conflicts or distrust or dislike of the executor.

Before filing a petition, seek out the legal guidance and opinion of a trusted probate administration attorney. You also may try to approach the executor yourself to discuss whatever issues you have and seek clarification or an amicable resolution.

Who Takes the Place of a Removed Executor?

If the will does not name an alternate executor, the probate court will usually turn to the hierarchy of heirs named under intestacy statutes to choose a new executor. The decedent’s spouse usually tops the list, followed by adult children.

How Legal Counsel Can Help

In all matters relating to probate administration, it’s always important to discuss your issues with knowledgeable and experienced legal counsel. 

If you’re in or around Southlake, Texas, contact Attorney Chelsea Redding at Redding Law Office. Her practice is devoted to helping others with all issues of estate planning, including wills and probate. She will discuss your concerns with you and advise you of the optimal path forward. Reach out today.