A father dies and leaves his real estate to his two daugthers. One daughter wants to divide up and keep the property and the other daughter wants to sell the entire property. To make it more complicated, the daughter who wants to sell the property is the independent administrator under the father’s will. Is the court to divide the property or to allow it to be sold? The recent In the Estate of Billy Wayne Phillips, Deceased, No. 06-23-00017-CV, 2025 WL 1006386 (Tex. App.—Texarkana Apr. 4, 2025), addresses this fact pattern.
Facts & Procedural History
The father died in 2019, leaving a will that devised his entire estate, including a fourteen-acre tract in Hunt County, to his two daughters. One daughter lived on the property. The other daughter was appointed as the independent executor under the father’s will. The will did not make specific bequests of individual assets.
As the sole independent executor, the daughter appointed received “full power and authority over any and all of [the father’s] estate” including authorization “to sell, manage, and dispose of the same or any part thereof… and to do any and all things proper or necessary in the orderly handling and management of [his] estate.”
The matter ended up in litigation in probate court. The other daughter, who was already living on the fourteen-acre property, filed a petition in February 2022 seeking partition of the property in kind pursuant to Chapter 23A of the Texas Property Code (the Uniform Partition of Heirs Property Act). The executor daughter moved to dismiss her sister’s partition claim under Rule 91a of the Texas Rules of Civil Procedure, arguing it had no basis in law because the will did not devise specific real property to her and expressly gave the executor daughter the power of sale.
The probate court dismissed the non-executor daughter’s partition suit. In February 2023, the probate court entered an order finding that the executor daughter had the power to sell the property without further court order, which was the subject of this appellate court decision.
The Uniform Partition of Heirs Property Act Under Texas Law
To understand the rules at play here, we have to start with the Uniform Partition of Heirs Property Act. This is set out in Chapter 23A of the Texas Property Code.
Under Section 23A.002(5) of the Texas Property Code, “Heirs’ property” is defined as real property held in tenancy in common that meets three specific requirements:
- There is no recorded agreement binding all cotenants that governs partition
- At least one cotenant acquired title from a relative (living or deceased)
- At least 20 percent of the interests are held by relatives or by someone who acquired title from a relative, or at least 20 percent of the cotenants are relatives
The Act supplements the general partition provisions in Chapter 23 of the Texas Property Code and aims to protect family members who wish to retain possession of ancestral or family property from being forced to sell through traditional partition proceedings.
Section 23A.003(a) contains strong language stating that if property qualifies as heirs’ property, it “must be partitioned under this chapter unless all of the cotenants otherwise agree in a record.” This mandatory language suggests a strong legislative intent to protect heirs’ property from forced sales.
Powers of Independent Executors Under the Texas Estates Code
So how much authority does an independent executor have over estate property, and what limits exist on that authority? The Texas Estates Code grants independent executors substantial powers to administer estates with minimal court supervision.
Independent administration is a cornerstone of Texas probate law that distinguishes it from many other states. This system allows executors to act without constant court supervision, reducing costs and expediting the administration process. However, this independence is balanced by fiduciary duties that require the executor to act in the best interests of the estate and its beneficiaries.
Section 356.002 of the Texas Estates Code establishes that “if a will authorizes the executor to sell the testator’s property…the executor may sell the property.” This provision empowers independent executors to carry out the intentions of the testator as expressed in the will without requiring court approval for individual transactions.
An important consideration is that even though beneficiaries acquire vested interests in estate property upon the testator’s death, those interests remain subject to the administration of the estate. As the court noted in a previous case involving the same parties, the executor has both legal title to the property and a superior right of possession and control during administration.
When Did the Legislature Intend for Partition Laws to Apply During Estate Administration?
This court opinion suggests that the timing of legislative actions can provide insight into how courts should interpret potentially conflicting statutes.
The court explained that in the same legislative session that enacted the Uniform Partition of Heirs Property Act, the Legislature also passed Section 405.0015 of the Texas Estates Code, which became effective on the same date (September 1, 2017). This timing suggests a deliberate coordination between the two provisions.
Section 405.0015 specifically addresses the distribution of property by independent executors:
“Unless the will, if any, or a court order provides otherwise, an independent executor may, in distributing property not specifically devised that the independent executor is authorized to sell: (1) make distributions in divided or undivided interests; (2) allocate particular assets in proportionate or disproportionate shares; (3) value the estate property for the purposes of acting under Subdivision (1) or (2); and (4) adjust the distribution, division, or termination for resulting differences in valuation.”
The court in Phillips noted that “it is not a coincidence” that Section 405.0015 became effective simultaneously with the Uniform Partition of Heirs Property Act. As cited from In re Estate of Stewart, Section 405.0015 “provides an independent executor with the tools necessary to make non-pro-rata distributions and avoid the common partition litigation among heirs anticipated and addressed by the Heirs Partition Act.”
The court noted that this suggests the Legislature intended to give independent executors specific tools to handle property distribution that might otherwise be subject to partition proceedings under the Property Code.
Can Heirs Force Partition During Independent Administration?
This gets to the question in this case. Can the heir force partition during an independent administration?
The Texas Estates Code does provide mechanisms for beneficiaries to request partition, but with important limitations. Under Section 405.001 of the Texas Estates Code, after two years from the date letters testamentary are first issued, a person interested in the estate may petition for an accounting and distribution. The court may then order distribution if it finds no continued necessity for administration.
If property ordered to be distributed is incapable of distribution without prior partition or sale, Section 405.001(b) gives the court two options:
“(1) order partition and distribution, or sale, in the manner provided for the partition and distribution of property incapable of division in supervised estates; or (2) order distribution of that portion of the estate incapable of distribution without prior partition or sale in undivided interests.”
Additionally, Section 405.008 allows independent executors to voluntarily petition for partition and distribution or for an order of sale. However, this section specifies that an independent executor “may, but may not be required to” seek such relief.
These provisions create a structured process for addressing partition during estate administration, but only through the specific procedures in the Estates Code rather than through the general partition provisions of the Property Code.
How Does Section 405.0015 Affect Partition Rights?
What impact does Section 405.0015 have on the balance between an executor’s powers and beneficiaries’ rights to partition? The court’s analysis in Phillips suggests Section 405.0015 was specifically designed as a mechanism to avoid the application of the Uniform Partition of Heirs Property Act during estate administration.
By giving independent executors the statutory authority to make distributions in divided or undivided interests and to allocate particular assets, the Legislature provided a tool for executors to handle property distribution that might otherwise lead to partition litigation.
The court found that because there was no specific bequest of the property in Phillips’s will and the will gave the executrix the power of sale, Section 405.0015 controlled over the partition provisions in Chapters 23 and 23A of the Property Code.
This interpretation effectively means that when an independent executor has been granted the power of sale for property not specifically devised, that authority takes precedence over a beneficiary’s right to seek partition during the administration of the estate.
When Might Heirs Successfully Challenge an Executor’s Decision?
While the court ruled against the non-executor daughter’s partition claims, independent executors are not free to exercise their powers arbitrarily. What protections exist for beneficiaries?
Independent executors have fiduciary duties to the estate and its beneficiaries. As noted in the concurring opinion in Phillips, the Texas Supreme Court has described an executor as “trustee of the property of the estate, … subject to the high fiduciary standards applicable to all trustees.”
If an independent executor breaches these duties, beneficiaries may have remedies such as:
- Seeking removal of the executor
- Bringing an action for breach of fiduciary duty
- Requesting court supervision of specific actions
- Petitioning for an accounting and distribution after two years (under Section 405.001)
Additionally, while not successful in this case, the dissenting opinion in Phillips argued that the Rule 91a dismissal of the daughter’s claims was improper because the legal questions involved were novel and not “settled” enough to warrant dismissal as having “no basis in law.”
The dissent also noted that enough time had passed that the daughter
The Takeaway
This case suggets that during the independent administration of an estate in Texas, the authority granted to independent executors under Section 405.0015 of the Texas Estates Code generally takes precedence over partition rights under the Texas Property Code, including the Uniform Partition of Heirs Property Act, as to claims filed by heirs of the current administration. When a will does not specifically devise property and grants the independent executor the power to sell, heirs cannot force partition under Chapters 23 or 23A during administration. Instead, beneficiaries must work within the Texas Estates Code framework, potentially waiting until two years have passed to request an accounting and distribution, or challenging the executor’s actions on fiduciary grounds if appropriate.
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