The executor or personal representative has a lot of say in a Texas probate case. Absent limitations in the will, the independent executor has a lot of power.
They can do everything from deciding what property is sold and kept, what property is distributed and when, and what the value of the property is that is distributed in making distributions.
The courts will usually not disturb these decisions if they appear reasonable and there is no self-dealing involved.
Not surprisingly, one of the most common disputes in probate cases is whether a party is qualified to serve as the executor or personal representative of the estate. This preemptive bar to being appointed can come before the person does anything wrong and has to be removed for wrongdoing. This begs the question as to whether family discord alone can serve as a basis for disqualifying a would-be executor in a Texas probate.
The recent In re Karnes Heffner, 02-21-00419-CV (Tex. App.–Fort Worth Jun 08, 2023) case addresses this question.
Facts & Procedural History
This case involves a probate dispute between a surviving husband and the couple’s three children.
The decedent executed a will on August 8, 2013, appointing her son Timothy as the independent executor. She also executed a revocable living trust on the same day, with Timothy as the successor trustee and her other two sons as successor executors and trustees if Timothy was unable to serve.
On May 19, 2020, the decedent made a first amendment to her trust, distributing the contents of her homestead to her husband. She also granted the homestead property in Gainesville to her three sons through a general warranty deed.
The decedent died on May 22, 2020.
On June 8, 2021, Timothy filed an application for probate of an undisclosed will and letters testamentary.
The surviving husband objected, denying possession of the will and arguing that Timothy and his brothers were ineligible as executors.
On June 13, 2022, the probate court held a hearing, admitted the will to probate, appointed Timothy as the independent executor, and authorized the issuance of letters testamentary to him.
This appeal followed.
Qualifications to Serve as Executor
One of the primary issues in the appeal was whether the son Timothy was qualified to serve as the executor.
Section 304.003 of the Texas Estates Code sets out the qualifications to be the executor:
A person is not qualified to serve as an executor or administrator if the person is:
1. incapacitated;
2. a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored;
3. a nonresident of this state who:
(a) is a natural person or corporation; and
(b) has not:
(i) appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or
(ii) had that appointment filed with the court;
4. a corporation not authorized to act as a fiduciary in this state; or
5. a person whom the court finds unsuitable.
The surviving husband in this case did not challenge these qualifications. Rather, he challenged the appointment because (1) he asserts an interest in the Gainesville homestead property, (2) he lied in court, and (3) he does not communicate with the surviving husband.
The Absence of Family Discord is Not a Qualification
What the surviving husband was essentially arguing is that his challenging relationship with the son disqualified the son from serving as executor.
Subsection 5 of the statute does authorize the probate court to not appoint an executor if they find that the person is unsuitable. Many probate courts in Texas do in fact apply this provision to not appoint those based on similar allegations as those made in this case by the surviving husband if the facts warrant it.
The facts would only warrant overturning an appointment in a will if the facts and circumstances are more controversial. When there is no will and the personal representative is just the default, the probate courts are more likely to impose a lesser standard.
The law leaves this to the probate court’s discretion, however. An appeals court will usually not overturn the probate court’s decision in situations like this, which it did not do in this case.
The conduct of the party challenging the appointment has to be considered too. While not described in the fact section above, the surviving husband may have put the probate court off by filing a petition and brief with the court. The probate court had to remind the surviving husband that this case was an application for probate, not a lawsuit and that he was not a plaintiff entitled to a default judgment in the probate case. Right or wrong, the appeals court picked up on this in its opinion.
The appeals court specifically noted that “family discord alone is not enough to find an independent executor unsuitable.” Put another way, this is not one of the express qualifications set out in the Texas Estates Code.
Alternatives to the Application to Remove
While family discord does not per se disqualify a person from serving, there are other avenues for resolving disputes like this.
It is usually advisable to try to resolve these disputes sooner rather than later and do so out of court, given the costs, including attorneys fees, and the reality that the parties will need to work together during the probate administration.
This may include having a third party appointed that both parties trust or even asking the court to appoint a third-party attorney to serve. In other cases, it may involve appointing one of the parties but binding them with a family settlement agreement that specifies how and what they are to do in the probate administration.
If all else fails, mediation can often help in probate cases like this. A skilled mediator can often help the parties see the bigger picture and address family situations and circumstances that may otherwise hinder agreements. This can help prevent situations where an executor is removed and then reappointed.
Tips for Dealing With a Difficult Executor
Dealing with a difficult executor in a Texas probate can be challenging, but there are several tips you can follow to navigate the situation effectively:
- Understand the Executor’s Duties: Familiarize yourself with the executor’s responsibilities and obligations outlined in the will and in the Texas Estates Code. This will help you determine whether the executor’s lack of diligence or response is a genuine issue and whether they are fulfilling their legal duties.
- Review the Probate Documents: Carefully review the probate documents to understand what powers they have and for any instructions or limitations on the distribution of assets, timelines, etc. This will provide you with a clear understanding of your rights and the executor’s obligations.
- Communicate in Writing: Send written communication to the executor, documenting your attempts to contact them and outlining your concerns or questions. Request a response within a reasonable timeframe, and keep copies of all correspondence for future reference.
- Seek Legal Advice: If the executor remains unresponsive or fails to fulfill their obligations, it may be necessary to consult with an experienced probate attorney. They can assess your situation, advise you on your rights, and guide you through the legal steps to address the issue.
- Petition the Court: If all attempts to communicate with the executor have been unsuccessful, you can file a petition with the probate court. The court can issue an order compelling the executor to fulfill their duties or take other appropriate actions to resolve the matter.
- Request Removal of Executor: In cases of severe negligence or misconduct, you may consider filing a petition with the court to have the executor removed. This requires demonstrating substantial cause, such as a breach of fiduciary duty or a failure to act in the best interests of the estate.
- Mediation or Alternative Dispute Resolution: Depending on the circumstances, you may explore mediation or alternative dispute resolution methods to encourage communication and find a resolution outside of court. A neutral third party can facilitate discussions and help reach a mutually agreeable solution.
- Document Everything: Keep meticulous records of all your interactions, communications, and attempts to address the issue with the executor. This documentation will be valuable if you need to present evidence of the executor’s nonresponsiveness or misconduct to the court.
The Takeaway
While family discord is not enough to have an executor removed or to disqualify the executor, the probate courts will usually help avoid disputes by not appointing those who are likely to disrupt the probate process. This is particularly true when there is no will. There are alternatives that can be considered when there is conflict as to who should be appointed.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with probate disputes. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Don’t let family disputes complicate your probate case. Get your free consultation today and let us guide you through the process.
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.
Don't miss out, get a copy today!
