This series on removal of Texas executors has taken you through several steps and considerations. You have the recipe and you may even have the necessary ingredients to remove an executor, which we discussed in our last post. You may be confident that you can bake this removal cake—but should you? Several legal challenges and strategic considerations may influence your decision. This post discusses some of those challenges below.
–The devil you know. Uncle Jim was appointed executor of your mother’s estate. Since then, he’s ignored your requests for information, he’s been slow to distribute estate assets, and he failed to insure you mother’s homestead. You have the documents and testimony you need to build a removal case against him. You know the probate court is inclined to remove Uncle Jim if you ask. But wait a minute! Your mother’s will says that if Uncle Jim can’t serve as executor, then Uncle Bob takes over. While Uncle Jim is lazy and incompetent, Uncle Bob is a downright crook who will cheat you every chance he gets. You can try to remove Uncle Bob, but by that time he may have stolen your mom’s entire estate. Alternatively, the court may appoint a local attorney as Uncle Jim’s replacement, which will result in attorney’s fees charged to the estate. In this scenario, it may be better to stick with Uncle Jim—the devil you know—and decline to seek his removal.
–Scorched earth. As a default rule, executors can use estate funds to pay for their own legal counsel. That includes defending against removal actions. If the probate court finds that the Uncle Jim was acting in good faith, then he can use estate funds to pay for his defense, even if you are successful and the court removes him. Your success in court may result in a pyrrhic victory because much of your mother’s estate has been spent on Uncle Jim’s attorney’s fees. In practice, proving bad faith can be difficult. An experienced probate attorney can help you assess whether the executor can use estate funds to defend against removal.
–Out of the frying pan. Let’s continue to put Uncle Jim in our crosshairs. Except in this scenario, Uncle Bob isn’t named as successor executor. Uncle Jim agrees to step down without a fight with minimal cost to your mom’s estate. The court is going to appoint you, rather than a local attorney, as Uncle Jim’s replacement. Sounds great, right? You may have just hopped out of the frying pan and into the fryer. When the court appoints you, it converts the estate from an inexpensive independent administration to a costly dependent administration. The court then requires you to post an exorbitant bond. You inherit a logistical nightmare when unauthorized charges appear on your mom’s credit card. Your sisters Ann and Sue are fighting over who gets mom’s grand piano. You settle that dispute, but now your brother Bill is complaining about estate money being spent on movers to deliver the grand piano. Now you wish you could turn back time and put Uncle Jim back in charge of the estate.
Depending on your circumstances, the removal process may involve additional strategic and tactical considerations. Skilled and experienced Texas probate litigators can help you navigate the removal process and walk through these considerations.
Next up, we conclude this series by highlighting and summarizing some critical points. We encourage you to contact us today if you’re considering whether to remove an executor or administrator. Our Texas probate attorneys are experienced in assessing client’s specific situations, advising them on the risks of a removal action, and pursuing or defending against executor removal. Please contact us today if you have questions about the removal of an executor or administrator in North Texas, Central Texas, West Texas, East Texas, and South Texas. Our offices also serve Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.