female judge on benchIn our last two posts, we addressed the legal grounds for removal in independent and dependent administrations. Those grounds are similar to food recipes. But you also need the ingredients for the recipe. That’s where removal evidence comes in. This post discusses the types of removal evidence you can use and the ways you can obtain it.

The right fit. Most importantly, removal evidence must pertain to an appropriate ground for removal. You may have a parade of witnesses who will testify that the executor is a morally corrupt person. That evidence alone, however, will not support removal because it doesn’t fit into any of the categories that we discussed in our last two posts.

Testimony and documents. Removal evidence typically falls into two categories—witness testimony and documentary evidence. Interested persons often rely on a combination to support an executor’s removal. For example, let’s say you’re trying to prove the executor embezzled property from your father’s estate. Documents like copies of checks or account statements can reveal stolen funds. Or you could testify that you’ve seen the executor wearing your dad’s Rolex.

Discovery tools. Once an interested person files a motion to remove an executor, they unlock the tools of legal discovery. Don’t have access to the estate checking account to look for suspicious transactions? You can send the bank a subpoena for the account statements. Concerned the executor may be hiding estate assets? You can send the executor written discovery requests that ask for documents and written responses. Concerned that the executor will lie on the witness stand? You can take his deposition and make him commit him to his lies under oath, which gives you the time and opportunity to impeach him in court.

Statutory accounting. Texas executors may be compelled to provide a statutory accounting to beneficiaries. The accounting is a written document prepared and sworn to by the executor, which sets out in detail all the assets and debts of the estate, what the executor’s done with the estate assets, and other actions the executor has taken on behalf of the estate. In dependent administrations, the executor or administrator must file annual accountings with the court. After fifteen months pass in an independent administration, interested persons can demand an accounting any time they wish.

We recommend against using the procedures above without the assistance of counsel. In practice, discovery and evidentiary rules are complex and often counterintuitive. In addition, the removal process involves several strategic decisions that may impact whether you seek removal and how you pursue it. We’ll discuss some of those challenges in our next post.

The Johnson Firm’s probate lawyers regularly help beneficiaries and other interested persons obtain evidence to build and defend against the removal of executors and administrators throughout Texas. Please call our Dallas lawyers if you need help removing an executor or defending against a motion to remove. Our offices also serve Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.