Our last post outlined the process for becoming an executor in Texas. This post addresses the opposite situation—how to prevent an executor from being appointed. There are several reasons why you may wish to challenge the appointment of an executor. Perhaps you are the beneficiary of your dad’s estate, and you don’t think your irresponsible sibling will serve as a diligent executor. Maybe the person who was named as executor was your mom’s trusted business partner who later did some untrustworthy things, and your mom died before she could change her will. Whatever the situation, it is important that you take immediate action. If you are in need of assistance then contact our office today to speak with a Dallas probate lawyer.
You Should Act Quickly to Challenge the Appointment of a Texas Executor
Timing is critically important for challenges to the appointment of a Texas executor. It is much more difficult to remove an appointed executor than to prevent that executor from being appointed in the first place. As discussed below, the court may decline to appoint an executor for many reasons. In contrast, if an executor is already appointed, courts will not remove the executor unless the executor has committed serious misconduct in managing the estate assets.
Unless you are being proactive, you almost certainly won’t have knowledge or awareness that an executor may be appointed. Like we discussed in our previous post, when somebody applies to appoint an executor in Texas, they don’t need to notify any particular people. Instead, they post a public notice with the court, which can be difficult to find.
If you wish to challenge the appointment of an executor, you should monitor the court dockets. First, identify the county where the deceased person was last living. Then call the county clerk and ask to speak with the probate department. Then, ask the probate clerk whether an estate is pending for the deceased person and, if so, whether a hearing on the appointment of an executor has happened. If a hearing is scheduled, you should contact a Texas probate lawyer as soon as possible, so that you can challenge the executor appointment before the hearing.
You May Challenge the Appointment of a Texas Executor by Asserting Your Statutory Priority
You need valid reasons to prevent an executor from being appointed by a Texas probate court. We will first discuss statutory priority. This challenge relies on a list contained in the Texas Estates Code. Texas probate courts consult this list if multiple qualified persons attempt to be the executor. The list provides the following eight categories of persons:
- The person named as executor in the will.
- The surviving spouse of the deceased person.
- The person who receives the biggest inheritance under the deceased person’s will.
- Any person who receives an inheritance under the deceased person’s will.
- The deceased person’s next of kin.
- A creditor of the deceased person.
- Any other person of good character residing in the county where the deceased person was living.
- An appointed public probate administrator—usually a local attorney selected by the court.
If you’re asking the court to appoint you as executor, you want to be as high as possible on the list above. You may be able to prevent someone from becoming executor simply by asserting your preferential placement on that list.
Disqualified Persons Cannot Become Executors in Texas
Qualification challenges are another common way to prevent an executor’s appointment. The person who applied to become executor must prove to the court’s satisfaction that he or she is qualified under Texas law. If you wish to challenge the attempted appointment, you may show the court that the person is disqualified and therefore cannot become executor. The Texas Estates Code provides several ways that a person may be disqualified.
Incapacitated persons. Legally incapacitated persons are disqualified from becoming executor in Texas. There are several ways a person can be incapacitated. First, all minors count as incapacitated persons and therefore cannot become executor. Second, any person who, because of a physical or mental condition, cannot take care of their own health, wellbeing, or finances, may count as an incapacitated person. Please see our series on pursuing and avoiding Dallas guardianships for more details on how a person can be incapacitated.
Convicted felons. By Texas law, persons who were convicted of a felony are disqualified from becoming executor, regardless of where and when the felony conviction occurred. Felons who have been legally pardoned or had their civil rights restored, however, are not disqualified from becoming executor.
Non-Texans without resident agents. Persons who reside outside of Texas are also disqualified from being executor, with one big exception. Nonresidents may appoint a resident agent, in other words a person who does live in Texas who will forward legal notices to the nonresident executor, and file a notice with the court that identifies the person named as resident agent. This effectively prevents them from being disqualified.
Uncertified corporations. Corporations must have special authorization to act as fiduciaries. Otherwise, they are disqualified from becoming executor.
Unsuitable persons. The final category of disqualification is unsuitability. This is the most common way that a person can be disqualified. The Texas Estates Code defines unsuitability, rather vaguely, as “a person whom the court finds unsuitable.” Courts may find a person unsuitable for various reasons. Texas probate courts sometimes refuse to appoint an executor who has declared bankruptcy or is proven to be financially irresponsible. Courts also commonly find an executor is unsuitable if he or she has committed illegal acts that involve lying, cheating, or stealing. An executor may be unsuitable if they have an adverse financial interest against the deceased person or the deceased person’s property.
Courts may also find that executors are unsuitable and therefore disqualified for a variety of common-sense reasons. If you wish to challenge an executor’s suitability, we recommend you speak with a probate attorney with experience contesting the appointment of Texas executors.
Our Dallas, Texas team of probate lawyers can help you assert or defend challenges to the appointment of executors. We also regularly assist clients in Fort Worth, Plano, Denton, and throughout Texas. Please contact us as soon as possible if you need legal assistance with the pursuit or prevention of executor qualification.
In our next post, we will discuss the tasks executors must complete according to Texas statutes.