Family relationships can fray after someone dies. Money and property have a way of bringing out the worst in people. Sometimes the conflict escalates beyond angry words at the funeral or tense meetings with the lawyer.
What happens when the person named as executor in the will has committed violence against another family member who stands to inherit? Does it matter if the criminal case resulted in deferred adjudication rather than a final conviction? Can the probate court look past a guilty plea and appoint someone who admitted to pointing a gun at his brother?
These questions came before the Tyler Court of Appeals in In the Matter of the Estate of Sue Nell Terrell, No. 12-25-00177-CV, 2025 WL 3237397 (Tex. App.—Tyler Nov. 19, 2025, no pet. h.). The case offers a window into how Texas courts evaluate executor suitability when family violence enters the picture.
Facts & Procedural History
Sue died in May 2010. Her will named her husband as executor. When he died in 2012, the will designated her son Howard Jr. as the alternate executor. Despite being named in this role, Howard Jr. never filed the will for probate.
Twelve years after Sue’s death, another son, Donald, decided to file for probate. He did this as the family needed to collect funds from a pending personal injury lawsuit in Dallas County. Donald initially filed an application for independent administration. After learning about Sue’s will, he filed to appoint a temporary dependent administrator and requested letters testamentary.
The family situation was complicated by events that occurred years earlier. In November 2017, Howard Jr. pleaded guilty to aggravated assault with a deadly weapon. The victim was his brother Reginald, who was also an heir to Sue’s estate. As part of the plea process, Howard Jr. signed a stipulation of evidence under oath. In that document, he admitted that on January 23, 2016, he intentionally and knowingly threatened Reginald with imminent bodily injury by pointing a firearm at him.
Howard Jr. received deferred adjudication for this offense. Because he completed the terms of his deferred adjudication, no final conviction appeared on his record. Based on this, Howard Jr. argued this fact should protect him from disqualification as executor.
The trial court disagreed. After a hearing, the court appointed Michael, another son who lived in Alabama, as dependent administrator. The court found Howard Jr. unsuitable to serve under the Texas Estates Code. Howard Jr. appealed, raising six issues including the suitability determination, notice problems, and the four-year statute of limitations.
The Texas Estates Code Priority System for Appointing Executors
The Texas Estates Code sets out a hierarchy for who gets appointed as executor or administrator of an estate. Section 304.001(a) provides nine categories for this. At the top sits the person named as executor in the decedent’s will. Next comes any person designated as administrator under Section 254.006. The surviving spouse follows in third position.
After the spouse, the code moves through principal devisees, then any devisees, then next of kin. Further down the list are creditors, persons of good character residing in the county, and any person not disqualified under Section 304.003. Public probate administrators occupy the final spot.
This hierarchy reflects Texas policy favoring the decedent’s expressed wishes. When someone takes the time to execute a will and name an executor, that choice carries weight. The named executor gets first priority, assuming they qualify under the law.
But priority is not absolute. When multiple applicants hold equal priority, section 304.001(c) gives the court authority to choose the person most likely to administer the estate advantageously. The court can even appoint two or more equally entitled applicants to serve together.
This language about “advantageous” administration matters. It signals that the court must look beyond formal qualifications to practical considerations. Will this person do a good job? Can they work with the other heirs? Do they have the time and ability to handle estate matters properly?
Statutory Disqualifications Under the Texas Estates Code
Section 304.003 of the Texas Estates Code lists specific categories of people who cannot serve as executor or administrator. Some disqualifications are straightforward. A minor cannot serve. Neither can someone who has been judged to be incapacitated. A person convicted of certain felonies is out–if the court decides they are out. So is someone who lacks the capacity to understand the nature of the application or discharge the duties.
Non-residents face restrictions too. Someone who does not reside in Texas cannot serve unless they appoint a resident agent to accept service of process in all actions or proceedings related to the estate. This requirement protects parties who need to serve legal documents on the executor.
Then comes subsection (a)(5), the provision at issue in the Terrell case. This subsection disqualifies “a person whom the court finds unsuitable.” Unlike the other categories, this one provides no specific criteria. The statute does not define “unsuitable.” It does not list factors the court should consider. It simply grants the court discretion to exclude people who should not serve.
This broad language gives probate courts flexibility to address situations the legislature could not anticipate. Not every reason someone should not serve as executor fits neatly into categories like incapacity or criminal conviction. Sometimes the facts present a picture that makes appointment inappropriate, even if no specific statutory bar applies.
The Court’s Analysis: When Does a Guilty Plea Matter?
Howard Jr. built his argument around a technical point. He had not been convicted of aggravated assault with a deadly weapon. His deferred adjudication meant the charge should not count against him. Without a final conviction, he argued, the criminal case provided no basis for an unsuitable finding.
The court of appeals rejected this narrow interpretation. The issue was not whether Howard Jr. had a conviction on his record. The issue was whether his conduct made him unsuitable to serve as executor. His admission that he committed the assault provided the factual foundation the court needed.
The court pointed to the stipulation of evidence Howard Jr. signed under oath as part of his guilty plea. In that document, he agreed that specific facts were true and correct. He admitted intentionally and knowingly threatening Reginald with imminent bodily injury. He admitted pointing a firearm at Reginald. He admitted using or exhibiting a deadly weapon during the assault.
These admissions came in a formal legal proceeding before a district court judge. Howard Jr. signed the document under oath. The facts he admitted established that he committed aggravated assault against his brother.
The appellate court found two facts particularly significant. First, Reginald was an heir to Sue’s estate. The victim of Howard Jr.’s assault stood to inherit from the estate Howard Jr. sought to administer. Second, Howard Jr. failed to probate the will within four years of Sue’s death despite being named as alternate executor.
This combination supported the unsuitable finding. Howard Jr. committed violence against someone he would need to work with as executor. Then he failed to fulfill his duties under the will for over a decade. The trial court had ample basis to conclude he should not serve.
The Takeaway
Texas probate courts can look beyond criminal conviction records when evaluating executor suitability. A guilty plea with deferred adjudication does not insulate someone from an unsuitable finding if their conduct demonstrates poor judgment or inability to work with co-heirs. When that conduct involves pointing a gun at a family member who will inherit from the estate, trial courts have discretion to appoint someone else. This is based on the person being “unsuitable” under section 304.003(a)(5).
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Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
