REMOVAL OF INDEPENDENT EXECUTOR
By: James M. Bright, Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Occasionally I have someone call or visit my office who is concerned that a person who was designated by the Will and appointed by the Court to act as Independent Executor is not performing his duties as Independent Executor.
When this concern is raised, two questions must be answered. How long has it been since the independent executor was appointed? What acts have been committed which are contrary to the interest of the beneficiaries?
My first advice is usually to file a request with the court to be sent notice of any motions, applications or pleadings which are filed by any person or persons in that particular probate proceeding. This notice request is authorized under Probate Code §33j. By knowing what is being done in the proceeding, you will be better advised regarding whether or not you have cause for concern. This request may be made at any time after the probate application is filed. You will, however, need to check with the court to find out whether costs or fees, if any, are associated with this service.
If it has been fifteen months or more since the independent executor has been appointed, you may wish to demand an accounting as authorized by Probate Code §149A. That statute will require the executor to report to any person who has an interest in the estate and to set forth in detail (1) the property belonging to the estate that has come into the hands of the executor; (2) the disposition that has been made of property; (3) debts that have paid; (4) debts and expenses still owing; (5) property of the estate that is still in the executor’s hands; (6) other facts necessary to understand the condition of the estate; and (7) facts, if any, that show why the estate should not be closed and the estate distributed.
If the executor fails to provide the required accounting within sixty days following demand, the person making demand may compel compliance by an action through the court.
An action for accounting as described above will probably answer most questions and belay most fears, but when it does not, Probate Code §149C offers six grounds for which an independent executor may be removed from office. Those grounds are available at any time after an appointed independent executor has been cited by personal service to answer at a time and place dictated by the personal citation. Those grounds are as follows and can be in response to an interested person’s motion or upon the court’s own motion:
1. Failure to return an inventory of property and claims within ninety days following appointment unless that time was extended by the court; or
2. Sufficient grounds appear to exist to support a belief that the independent executor has embezzled or misapplied or is about to embezzle or misapply estate property. (Note: This must be more than a “feeling” or “intuition;” it must be supported by provable facts.) or
3. Failure to make a required accounting;
4. Failure to timely file an affidavit or certificate required by Probate Code 128A. (That statute deals with giving notice to beneficiaries under the decedent’s will.) or
5. Proof is offered that the independent executor is guilty of gross misconduct or gross mismanagement in the performance of his/her duties; or
6. The independent executor becomes incapacitated or becomes legally incapacitated by being convicted of crimes or other acts which prevent him from performing his duties as an independent executor.
Although Probate Code §149C as discussed above relates to “independent” executors, the Code also provides a method for removing a representative who is not serving independently through the provisions of Probate Code §222. Those provisions are similar in many ways and apply to personal representatives that serve in other capacities.
It should further be noted that not every ground for removal is associated with a particular finite time period (such as fifteen months). Some grounds for removal may occur very early in the probate proceeding.
It is important to be informed as to exactly what your rights may be in a particular situation. One way to ensure that you are informed is to retain an attorney of your choice to advise you regarding questionable phases of the probate process.
James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at208 McCown Street
in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com