If your loved one passed away and left a will naming an executor, you might believe that you are stuck with that person. You might be right, but… not always. The Texas Estates Code allows you to challenge the appointment of that Executor to show that they are disqualified. There is also a provision to remove an Executor once they have been appointed, but that will be the topic of another post. Today I want to focus on pre-appointment disqualification as I recently won a case where this was the very issue. Pre-appointment means before the Court admits the will to Probate and appoints an Executor.
**IMPORTANT NOTE: It does not take long for someone to apply to become the Executor and to get appointed. Many times they can become appointed before anyone knows what is going on. You must act quickly to challenge them!
Q: So, what will disqualify an Executor that is named in a Will?
A: An Executor is disqualified generally if they are:
- Incapacitated (either by age, or by adjudication);
- A felon, convicted in any state (unless pardoned);
- A person or entity who does not live or have their principal business in Texas and they have not appointed a resident agent or had the appointment filed with the Court;
- A corporation who is not authorized to act as a fiduciary in Texas; or
- A person the court finds unsuitable (the catch-all)
As you can imagine it is pretty easy to see if an Executor fits within the first four categories above. Where it becomes more of a challenge is trying to prove to a court that a person is unsuitable.
Q: So what makes a person unsuitable?
A: Typically this comes up when there is a conflict of interest between the Executor and the estate. However, Texas Courts have said that the conflict arises when the executor is trying to exert control over estate assets (but keep in mind, if the Executor has a claim against the estate, this is generally not a conflict). It seems strange, but there is a distinction. Of course, there are other things that can make an Executor unsuitable and because the Court has broad discretion to find a person unsuitable it is best to bring a list (and any evidence) of all the things a potential Executor has said or done that you believe makes them unsuitable when you come in to speak with us. Remember, there is a small window of opportunity to defeat a potential Executor before they are appointed — you have to act fast.
For a free initial consultation with experienced Sugar Land business attorney who can advise you on how to set up a Texas business entity, please call us at 281 242-0995 or contact our Sugar Land law office.