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Executor Cannot Resign Without Notice & Consent of Will Distributees

Probate cases can be challenging given the different parties involved. In some cases, family members who have lifetime differences and long-running disputes are forced to work together to wind up the decedent’s last affairs. These disputes often end up in probate court.

This can result in disputes and overreaching. The recent Estate of Allen, 658 S.W.3d 772 (Tex. App.–El Paso 2022) case provides an example. In this case, a surviving spouse with next to no interest in the decedent’s estate was permitted to intervene in the probate and block the resignation of the then-current executor.

Facts & Procedural History

This case involved a father who died and left everything to his son as the sole beneficiary. The surviving spouse had a homestead right in the marital home.

The son was named as the second alternate independent executor of the will. As part of the probate administration, the son asked the court to permit the first named executor to resign and appoint him as the successor independent administrator.

The son also sought the court’s permission to enable the resignation without a final accounting and without notice or hearing due to the executor’s advanced age and inability to adequately perform his duties. In compliance with their request, the probate court signed an order authorizing the resignation and appointment.

The surviving spouse appealed the probate court’s decision based on the argument that she was not provided notice of the hearing. The appeals court agreed with her.

About Independent Administrations

The reason why this dispute was relevant to the parties is that this case involved an independent administration. The independent administrator is granted wide leeway in Texas probates.

Once appointed as the executor in an independent administration, the executor is able to oversee the estate with minimal court supervision. This level of autonomy allows them to make most major decisions without the court’s input, saving substantial time and reducing costs.

The executor has broad powers and can perform actions that a dependent administrator might require a court order for. This can include deciding who gets what property, what the value of the property is, what property to sell, what creditors to pay and when, and other decisions.

This is likely one of the reasons why the surviving spouse was interested in this case. She was likely worried that the executor would not fulfill their duties to continue paying the principal payments for the mortgage on the house (if there was a mortgage) or reimbursing her for repairs made to the house.

Why an Executor Might Resign

In many estates, the role of an executor can be quite overwhelming. It can be a full-time job.

There are several reasons why an executor might not be able to continue serving in this role:

  1. Death: If the executor passes away during the administration of the estate, they will no longer be able to serve.
  2. Illness or Incapacity: An executor might become physically or mentally incapable of fulfilling the duties due to illness or other health-related issues.
  3. Personal Issues: An executor may choose to resign from their duties due to personal or family issues, lack of time, stress, or even conflicts with beneficiaries. Similarly, other commitments or changes in life circumstances might render the executor unavailable.
  4. Relocation: If an executor moves to a different location and is unable to manage the estate effectively from a distance, they may not be able to continue in their role.
  5. Legal Disqualification: Certain legal issues may disqualify an individual from serving as an executor. For example, if an executor is convicted of a felony, they may be legally barred from continuing in this role.

It’s important to note that when an executor can no longer serve, typically a successor executor or administrator is appointed. This could be an individual named in the will as a backup executor or someone appointed by the court.

Appointing a Successor Executor

Executors cannot be compelled to continue in their role indefinitely. Nevertheless, because of potential liability, an executor generally can’t abandon their duties if the estate still requires administration. Therefore, the executor has to follow the established process for resigning in such situations.

Section 361.001 of the Texas Estates Code outlines the formal process a personal representative must follow when resigning.

Section 361.001 mandates a personal representative who wishes to resign submit a written application to the court clerk. This application must include a thorough and verified exhibit and a final account that accurately depicts the true state of the estate entrusted to the representative.

The court will then set a hearing. At the hearing, the court will review the exhibit and final account as stipulated by Section 361.001 of the Texas Estates Code. It will consider all evidence supporting or contesting these documents, and if necessary, restate, audit, and settle the exhibit and final account. Provided the court is satisfied that the personal representative has adequately managed and accounted for the entrusted matters, it will approve the exhibit and final account. The court will then order any remaining estate property in the applicant’s possession to be delivered to those legally entitled to receive it.

The court, if deemed necessary, can promptly accept the resignation and appoint a successor representative. However, it can’t discharge the resigning representative or the sureties on their bond until a final order is issued or judgment rendered on the final account, as required under Section 361.001.

Requirements for the Final Account

Under Section 361.001 of the Texas Estates Code, a final account by an executor or administrator of an estate typically includes the following elements:

  1. Assets: A detailed listing of all the assets that were part of the estate when the executor or administrator began their duties. This can include real estate, bank accounts, investment accounts, personal property, and any other assets.
  2. Debts and Liabilities: Any debts or obligations that were owed by the estate, including final bills, funeral expenses, estate administration costs, and outstanding taxes. These need to be paid off from the estate’s assets.
  3. Income: Any income that the estate received while the executor or administrator was in charge, such as rent from real estate, interest and dividends from investments, or income from a business owned by the decedent.
  4. Disbursements: All money or assets that have been paid out from the estate during the time of administration. This can include payments to settle debts and expenses, distributions to heirs or beneficiaries, and any other payments made.
  5. Remaining Estate: Finally, the account will show what remains in the estate to be distributed to the heirs or beneficiaries, once all the income has been collected and the debts and expenses paid.

The final account needs to be a true and accurate depiction of the state of the estate and should be thorough and verified. It’s presented to the court for review and, if accepted, forms the basis for closing out the estate administration and discharging the executor or administrator from further responsibilities.

Is the Surviving Spouse a Distributee?

This brings us back to this case. In this case, the appeals court concluded that Section 361.001 et seq was not the controlling law for independent administrations.

The appeals court held that Section 404.005 applies to independent administrations and it requires that all distributees agree to the appointment of an independent executor not named in the decedent’s will.

steps to resign as the executor

The appeals court then went on to conclude that the surviving spouse was a distributee even though she was not a beneficiary under the will. The court cited the homestead right that the surviving spouse acquired. It concluded that this homestead right was equivalent to a life estate–which is a recognized property interest–which caused her to be a distributee.

It rejected the claim by the son, i.e., the sole beneficiary, that the surviving spouse was not a distributee because she was neither an heir nor a beneficiary, determining that her homestead interest in the family home qualified her as a distributee.

This is a bit of a stretch, as a homestead right is not a life estate. The homestead right is similar, but something slightly less than a life estate. They are not identical and not recognized as full property right.

Regardless, the appeals court’s determination results in a notice and consent requirement for the surviving spouse. That was not provided in this case and, as such, the appeals court reversed the probate court.

Takeaway Conclusion

According to this case, the homestead right of a surviving spouse is sufficient to qualify the spouse as a “distributee.” This means that they are entitled to notice and have to consent to the appointment of a new executor who is not set out in the will. As this case shows, this can allow a surviving spouse to have some say and influence over the probate even though they are really not a distributee in the estate and have next to no interest in the estate. To avoid this, one might update their estate plan to name new executors and contingent executors in their wills and even list more contingent beneficiaries in their wills.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with executors who want to resign. 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. Call us today for a FREE attorney consultation.


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.

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