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If you are named as the executor of a will, you’ll be in charge of managing the deceased person’s estate. The executor is the personal representative. However, you might be disqualified from serving as the executor if you don’t meet certain criteria under Texas state law.

The Probate Case

In re Estate of Gaines, 262. S.W.3d 63 (Tex. App. 2008)

Facts of the Case: Executor Requirements

Veronica Davis, the executor (person appointed by the court to manage a deceased person’s remaining financial obligations) of Margaret Lynn Gaines’ will, submitted an application to probate the will (an application to probate a will allows the court to gather the deceased’s assets and distribute them among creditors and inheritors). Davis also obtained a subpoena duces tecum (a court ordering a person to attend court and submit relevant documents) on behalf of the Gaines’ estate which ordered the bank to produce bank statements and records at the request of Gaines’ heirs. The bank did not produce the records, refusing on the grounds that Davis did not have the authority to request this order. The heirs’ guardian and holder of the bank accounts then moved to have the subpoena voided.

Davis argued in at the probate court that the court compel the production of the documents, hold the bank in contempt (considered to have broken the law) for disobeying the subpoena, demand production of records for inspection, sanction the bank, and that the bank award costs, attorney fees, and any court costs or relief she should be entitled to. The bank responded that subpoena was deficient and could not be completed. The trial court granted guardian’s motion to void the subpoena, appointed a new executor to the estate, and ordered Davis, the original executor, to turn over all funds collected on behalf of the estate and its beneficiaries, and awarded bank attorney fees (the cost the bank spent during court).

At the court of appeals, Davis argued that the trial court was no allowed to disqualify and replace her as the executor, that she filed the subpoena correctly and it should not have been made void, and that the bank was not entitled to attorney’s fees from her. The court of appeals upheld the trial court appointing a new executor of the state and the denial of Davis’ subpoena and request for the bank to be held in contempt for refusing to produce the requested documents. The court of appeals also reversed the ruling of the trial court that awarded the bank attorney’s fees.

What this case means: Can an Executor be removed?

Why was the Court allowed to disqualify the executor?

In Davis’ argument, she contested that the court did not have grounds for disqualification because they attempted to do so orally rather than with filing a written motion. She also argues that the motion was not supported by pleadings (formal, written statements of one party’s claims or defenses to another party’s claims) and was therefore void. Typically, a court’s review of these situations a reviewed under an abuse of discretion standard meaning that if the court has exhibited an action that is beyond their limits of power, that action will be considered void. However, the appellate court here held that a trial judge deciding this issue in a different manner (orally instead of written) does not demonstrate an abuse of discretion or power. An executor may be disqualified if the court finds them unsuitable to be in the position of executor, and the court has broad discretion in deciding whether or not a person is suitable. The trial court heard enough evidence against Davis’ qualifications that went without objection during trial and from this evidence were in their power to deem her unsuitable. Because this evidence went without objection, the court applied the doctrine of implied consent which states that when issues that are not raised in pleadings are tried by express or implied consent (without objection) they will be treated as if they were raised in the pleadings. Thus the trial court was able to orally disqualify Davis without the support of pleadings.

Why was the trial correct in finding that the executor did not have authority to subpoena the bank?

The court denied Davis’ motion to compel (the subpoena) and her motion to hold the bank in contempt because they found she was not, at the time of the motions, qualified as the executor of the estate. Davis claims to have requested the subpoena as the attorney of one of the deceased’s children rather than as the executor of the estate. She claimed this made her a proper party to request a subpoena because the child was an “interested party” in the issue. However, there is no evidence in the record that Davis was hired by the deceased’s child to perform this role. Because there is no evidence to support this, Davis cannot prove that the trial court abused its discretion in denying her motion to compel/ motion for contempt.

Why was the bank not entitled to attorney’s fees?

Davis argued that the bank was not entitled to attorney’s fees because the bank did not request attorney’s fees in their original response to the motion to compel/motion for contempt, and was therefore not supported by pleadings and the award should be voided. The bank had only orally requested attorney’s fees during the trial, it did not state the amount of fees it was seeking, and it was only orally granted by the court. Because the bank failed to plead the issue by a formally written document, the trial court abused its discretion/power in awarding them the costs of the court.

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Free Illuminated City Buildings with a View from the Love Lock Fence in Houston Texas, USA Stock Photo

How much does it cost to remove an executor?

The cost of removing an executor is a very individual matter. There are no fixed amounts and the cost may depend on a number of factors.

Who can be an executor of a will?

When a person dies, it is common for the person to leave behind a will, also referred to as an estate plan. When that happens, a probate process is usually required to carry out the wishes of the decedent. To accomplish that, someone needs to step up and become the executor of the will.

Who can be an executor of an estate?

An executor is typically a close friend or family member of the decedent, and someone that the decedent trusts to carry out their final wishes. In some cases, the decedent may appoint more than one executor. The executor has a number of duties and responsibilities, which include:

  • Filing the necessary paperwork to start the probate process
  • Identifying and inventorying all of the assets of the estate
  • Paying any outstanding debts and liabilities of the estate
  • Distributing assets to beneficiaries in accordance with the terms of the will

The role of executor can be very demanding, both emotionally and logistically. It is not a decision to be made lightly. But for those who are up to the task, it can be an incredibly rewarding experience.

How to remove executor from will?

The probate court may disqualify an executor if it finds that the executor is not qualified to administer the estate.

How to change executors of a will after death?

If you want to take actions to change the executor of a will after the death of a testator, here is what you’ve got to do.

Sufficient Reasons for Changing Executor of a Will

You may be sure that you have your own reasons for wanting to change your wills, but most often people want to do so because the initial executor is either unable or unwilling to perform his duties. There may be other reasons – the executor may have passed away himself. The following are some common reasons people want to change executors of their will:

  1. The initial executor is unable or unwilling to perform his duties.
  2. The executor may have passed away himself.
  3. The testator (person who made the will) may have died and the beneficiaries want someone else to execute the will.

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