When someone is named as the executor of an estate, they have a fiduciary duty to act in the best interest of all heirs and creditors. This includes gathering assets, notifying beneficiaries and creditors, paying taxes and valid claims and, finally, distributing the remaining property to those entitled to receive them.
Unless the estate is under dependent administration, which involves oversight by the courts, executors are mostly unsupervised. While this comparative freedom benefits you and other beneficiaries because the probate process transpires more quickly and inexpensively, it also enables an unethical executor to take advantage of their position.
Imagine that one of your parents just passed away, and your sister was named the executor in the will. Soon you realize that she’s using estate money to pay her personal expenses and transferring titles to properties into her name, even though the will doesn’t name her as the recipient. Is there anything you and your other siblings can do to remove her as executor?
The answer is yes. When an executor fails to act in good faith when making decisions and distributions, beneficiaries can take action. In Texas, there are recognized grounds for removal of an executor.
Failure to Carry Out the Required Duties
There are certain statutory duties that an executor is legally obliged to carry out, and failure to do so can justify their removal. These duties include collecting and safeguarding the assets of the estate, filing an inventory of the estate’s assets and claims with the probate court within 90 days unless the court grants an extension, and, after paying any debts of the estate, distributing the estate’s remaining assets to the beneficiaries of the estate.
If you have sufficient evidence to believe that the executor has misapplied or embezzled estate assets (or is about to do so), they can be removed. The court will also remove them if they exhibit gross misconduct or mismanagement in the performance of their duties. Note the use of the term “gross”: the executor’s actions must be highly egregious. It cannot be a simple case of you not agreeing with their decisions.
Material Conflict of Interest
Actions that constitute a material conflict of interest could include misapplying funds or self-dealing in property belonging to the estate. For example, if your sister moves into your parent’s home and makes no attempt to sell it even though the will directs that it be sold and the proceeds split between the children, you may have grounds to allege a material conflict of interest.
If incapacity prevents the executor from performing their duties, the court could order them removed. This includes mental or physical incapacity and, in Texas, incarceration in a penitentiary.
Removing the Executor
If you believe that an executor has breached their fiduciary duty, you can request an accounting of the estate 15 months after their appointment. The executor will have to provide all heirs with information about the condition of the estate, including:
- What debts have been paid
- What assets have been distributed
- What assets are still in the executor’s possession
If the information you receive suggests a breach of fiduciary duty, you can file a motion with the probate court to have the executor removed. Whether or not they will receive notice depends on the reason for their removal: if there is evidence of embezzlement, there will likely be no notice. If the issue is something along the lines of failure to return an inventory and list of claims to the court, the executor will receive 30 days’ written notice.
The 15-month rule is alarming and frustrating for concerned beneficiaries because they worry that their inheritance will be stolen or dissipated before they can do anything about it. However, an experienced probate litigation attorney can help you uncover solid evidence of gross mismanagement and take the necessary steps to protect the estate.
Contact a Texas Probate Attorney
If you have concerns that merit the removal of an executor, the probate attorneys at Romano & Sumner can review the estate and the actions (or omissions) of the executor and help you put together a plan of action. We handled one case where an executor stole two million dollars from an estate and used our expertise and resources to ensure that the two young beneficiaries got justice. We know how to handle tough cases in and out of the courtroom, so please contact us or call 281-545-7614.