Just because someone is named in a will or even appointed to be an executor of an estate does not mean that they will act according to the will or the law. People are people, and there are good and bad people.
This begs the question as to what one can do if they are not satisfied with the person named as the executor in a will or that has been appointed as the executor by the court. The Estate of Crenshaw, 982 S.W.2d 568 (Tex. App.–Amarillo 1998, no pet.) case provides an opportunity to consider these questions.
Facts & Procedural History
Margarete B. Crenshaw (Margarete) drafted a will in 1988, designating her three sons, William, Charles, and James, as her heirs. Additionally, William was nominated as the independent executor of her estate. Nearly a decade later, in 1997, William initiated the probate process of Margarete’s will and sought to acquire letters testamentary in the County Court, referring to himself as Margarete’s only surviving son. This was a false assertion, as James was still alive. In response, James countered with a legal petition, expressing his disapproval of William’s appointment as executor and asked for a jury trial.
The case was moved to Lubbock County Court No. 1 due to the emergence of a contested issue. At a subsequent hearing, James requested a postponement under Rule 245, arguing that he was only given a seven-day notice instead of the entitled forty-five days. The court, however, rejected James’s request and affirmed William as the independent executor. William was then issued both the letters testamentary and temporary administration letters by the court. To legalize this, the court gave an order nunc pro tunc, as William’s initial request had not included the temporary administration letters.
James challenged the decision on two bases: 1) The refusal of his continuance request by the trial court was incorrect, and 2) There was a legitimate claim against William by Margarete’s estate. The Court of Appeals acknowledged that the first trial setting took place less than forty-five days after William’s original application, and since James had not been notified or agreed otherwise, the notice requirement of Rule 245 was not fulfilled. The Court also pointed out that James indeed raised a valid question about William’s qualifications as the independent executor. The Court determined that James fulfilled the criteria of an interested party in the estate as both the son of the deceased and a named beneficiary in the will. As no executor had been appointed at the time of James’s objection to William’s appointment, James met the legal conditions to have his case heard before the court. Consequently, the Court of Appeals overruled and sent back the trial court’s decision for further proceedings.
Remove the Personal Representative
In Texas probate, removing an executor, also known as a personal representative, is dictated by specific guidelines established in state law. The Texas Estates Code addresses this in terms of removal with notice and removal without notice.
Section 361.051 addresses removal without notice. According to this section, the court, on its own motion or on the motion of any interested person, can remove a personal representative without notice under several circumstances.
These include if the representative neglects to qualify as required by law, fails to return an inventory of the estate property within the stipulated time, fails to give a new bond if needed, is absent from the state for a consecutive period of three or more months without court’s permission, cannot be served with notices due to unknown whereabouts, eluding service, or absence of a resident agent, or has misapplied, embezzled, or is about to misapply or embezzle the property entrusted to their care.
Section Sec. 361.052 addresses removal with notice. This section says that the court may also remove a personal representative after the representative has been cited by personal service to answer at a time and place set in the notice. Grounds for removal include misapplication, embezzlement, or removal of the estate property, failure to return any account required by law, failure to obey a proper court order, gross misconduct or mismanagement in duties, incapacity, being sentenced to prison, inability to perform duties, or failure to make a final settlement by the third anniversary of the date letters testamentary or of administration are granted.
The Process for Removing an Executor
A personal representative can only be removed only on the presentation of clear and convincing evidence given under oath.
Once the court decides to remove an executor, it has to enter an order reflecting this. The requirements are set out in Section 361.053. The order removing a personal representative must state the cause of the removal, require the surrender and cancellation of any issued letters testamentary or of administration, and require the removed representative to deliver any estate property in their possession to the rightful persons or successor representative.
The court will revoke letters testamentary or of administration and grant other letters only on application and after personal service of citation on the person whose letters are sought to be revoked.
A removed representative can file an application for reinstatement within ten days after the removal order. A hearing will then be held to determine the validity of reinstatement. If the court is satisfied that the personal representative did not engage in the conduct leading to their removal, the court may reinstate them. If the court is satisfied that the personal representative did not engage in the conduct leading to their removal, the court may reinstate them.
The court may appoint a successor representative if necessary. If a person with a prior right to the letters applies for them, the court will revoke the initial letters and grant them to the second applicant.
This case also illustrates the rights of interested parties in contesting the appointment of an executor and their entitlement to due notice under Rule 245. It emphasizes that when there is a dispute, the court has a responsibility to ensure that all parties are given appropriate notice and opportunity to contest.
The takeaway from this case is that the court will uphold the rights of interested parties in the probate process, and those who may be appointed as executors or personal representatives have a duty to act in the best interests of the estate, under penalty of removal. Furthermore, the court has a duty to ensure that the process is fair and equitable to all parties involved.
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