Interested persons must wait for the appropriate time to seek removal of Texas executors, as we discussed in our last post. We now address legal requirements for starting the removal process. In this post, we’ll discuss removal of an independent executor—in other words, an executor in an independent administration. In our next post, we’ll discuss the same topic as applied to a dependent administration.
Independent administrations differ from dependent administrations in several ways. Courts have minimal oversight of independent executors and independent administrators, who can have significant freedom to conduct estate business without first asking the court. Most probate proceedings are independent administrations if the deceased person leaves a valid will, and under certain circumstances the court can create an independent administration if the deceased person dies without a will. Speak with a probate attorney if you’re unsure whether an administration is independent or dependent.
The general framework for removing an independent executor isn’t that complicated. First, an interested person files a motion to remove the executor in the probate court. Next, there is a waiting period when the parties can build up their case. Depending on the circumstances, the interested person may or may not need to arrange for personal service of legal citation on the executor.
The probate court eventually holds a hearing where each party presents their case to the court, and the court determines whether the executor’s alleged misconduct warrants removal. After the hearing, the court enters an order granting or denying the motion to remove.
Crucially, the party seeking removal must have proper legal grounds to bring their motion. In other words, they must present evidence that the independent executor’s misconduct falls into one of the following categories of misconduct described in the Texas Estates Code.
Grounds for Removing a Texas Independent Executor without Notice
An independent executor is subject to removal under the scenarios below. In each scenario, the interested person can present a removal motion to the court without serving the executor with advanced notice of the removal proceeding.
- The executor has gone missing, is purposefully avoiding service of notices or citations, or lives outside of Texas without a properly designated Texas agent.
- The executor stole estate property or distributed estate property to someone who isn’t entitled to a distribution.
- The executor is on the verge of stealing estate assets or distributing them improperly.
Grounds for Removing a Texas Independent Executor with Notice
An independent executor is also subject to removal under the additional scenarios below. In these scenarios, however, the interested person must arrange for personal service of citation to the executor, which gives the executor advanced notice of the removal proceeding.
- The executor fails to present an accounting to someone entitled to the accounting under Texas law.
- The executor has committed gross misconduct or gross mismanagement of the deceased person’s estate.
- The executor loses mental capacity, is sent to prison, or is otherwise legally incapable of fulfilling the executor’s duties.
- The executor has a serious conflict of interest that prevents the executor from faithfully fulfilling the executor’s duties.
- The executor fails to fulfill the court’s requirements to finalize their appointment as executor, file an inventory of estate assets with the court, or file an affidavit regarding notice to beneficiaries. In each of these cases, the court itself files the removal motion rather than the interested person.
You can view the legal grounds above like a recipe. But you also need the ingredients that combine to make your dish. In this analogy, legal evidence fills the role of recipe ingredients, which we’ll discuss in the fifth post in this series. Before that, however, we need to address removal in dependent administrations, which have additional recipes for removal and are generally easier to fulfill. That discussion continues in our next post in this series.
Our Dallas, Texas probate attorneys are experienced in seeking and defending against removal proceedings in independent administrations. We handle removal cases throughout Texas, so if you are a beneficiary seeking removal or executor faced with removal, we can assist. Please contact us today if you have any questions about the removal of an independent executor or administrator.