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When an Executor May Need to be Replaced

An executor is the person responsible for performing a number of tasks necessary to transfer assets or wind down the decedent’s affairs. Generally, the executor’s responsibilities involve taking charge of the deceased person’s assets, notifying beneficiaries and creditors, paying the estate’s debts and distributing the property to the beneficiaries. The executor may also be a beneficiary of the Will, though he or she must treat all beneficiaries fairly and in accordance with the provisions of the Will.


The duties of an independent executor are those of a trustee. He holds property interests, not his own, for the benefit of others. He manages those interests under an equitable obligation to act for the others’ benefit and not his own. He is a “fiduciary” of whom the law requires an unusually high standard of ethical or moral conduct in reference to the beneficiaries and their interests. His “duties” are more than the ordinary “duties” of the marketplace. They connote fair dealing, good faith, fidelity, and integrity.


Texas Estates Code 304.001 sets out the order of preference for who the court will appoint:


The court shall grant letters testamentary or of administration to persons qualified to act, in the following order:


(1) the person named as executor in the decedent’s Will;


(2) the decedent’s surviving spouse;


(3) the principal devisee of the decedent;


(4) any devisee of the decedent;


(5) the next of kin of the decedent;


(6) a creditor of the decedent;


(7) any person of good character residing in the county who applies for the letters;


(8) any other person who is not disqualified under Section 304.003; and


(9) any appointed public probate administrator.


Generally, a Will specifies who should serve as the executor. Most Wills in Texas specify that the executor will serve independent of court supervision, without bond. Generally, if an independent executor named in a Will comes forward within the statutory period for probating a Will, offers it for probate, and applies for letters testamentary, the court has no discretionary power to refuse to issue letters to the named executor unless he is a minor, an incompetent, or otherwise disqualified under statute. But a person named in a Will does not automatically qualify to be appointed as executor of the estate. Texas law provides that a person is not qualified to serve as an executor or administrator if the person is:


(1) incapacitated;


(2) a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored;


(3) a nonresident of this state who:


(a) is a natural person or corporation; and,

      (b) has not:

(i) appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or,

(ii) had that appointment filed with the court;


(4) a corporation not authorized to act as a fiduciary in this state; or


(5) a person whom the court finds unsuitable.


The term “unsuitable” is not defined in the Texas Probate Code, leaving the implication that the trial court has discretion in making that determination. No comprehensive, discrete explanation exists delineating the attributes which make someone unsuitable” to serve as an administrator.


The trial court is given broad discretion in determining whether an individual is suitable to serve as an executor or administrator. An appellate court will not disturb a trial court’s determination of an administrator’s suitability absent an abuse of discretion. The trial court abuses its discretion if its determination that the applicant is unsuitable is arbitrary or unreasonable. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred.


An independent executor can be removed after they are appointed. Texas Estates Code Section 404.0035 provides that the court may remove an independent executor if the independent executor:


(1) the independent executor fails to make an accounting which is required by law to be made;


(2) the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties;


(3) the independent executor 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


(4) the independent executor becomes incapable of properly performing the independent executor’s fiduciary duties due to a material conflict of interest.


The term “incapable” is not well discussed in the case law. It could be defined as “lacking the necessary competence, ability, or strength” or “unable to behave rationally or manage one’s affairs.” An executor should have the competence and integrity to put the interests of the Estate ahead of his personal financial interests and to manage the affairs of the estate in the fiduciary manner required of an executor.


If you are named an executor of an estate and due to illness or other factors are unable  to perform the tasks required, you need to contact an attorney.  The attorney should be familiar with estates and experienced in  probate to properly navigate you through this process. 

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