Grounds for Removing an Executor in Texas

Even if an executor is named in a deceased person’s will, they can be removed if they don’t work out. A probate court in Texas needs specific reasons for the removal of an executor. Removal can occur with our without notice to the executor.

The executor of an estate has responsibilities to meet the fiduciary obligations of an estate’s beneficiaries. These include:

• Administration of the estate.
• Taking an inventory of the estate within 90 days of being appointed executor.
• Paying and recovering estate’s debts.
• Giving an accounting of assets to the beneficiaries of the estate.
• Distributing assets of estate to the beneficiaries identified in decedent’s will.

While the executor may be named by a deceased person in their will, they may not be the best person for the job. Some specific reasons an executor can be removed in Texas are:

• ‌Flagrant misconduct:‌ Texas law states that the executor of an estate can be removed for estate asset theft, flagrant misconduct or mismanagement. The Texas Supreme Court must prove that the executor is guilty of gross misconduct or mismanagement while in the role.
• ‌Failure to execute responsibilities:‌ Failing to safeguard estate assets can result in an executor’s removal, as will failure to file court documents on time.
• ‌Conflicts of interest:‌ Material conflict of interest includes fund misappropriation, self-dealing in estate property, or breach of fiduciary duty. A conflict of interest can occur with the executor and/or beneficiaries, including family members and spouses. If no demonstrable misconduct or conflicts of interest, an executor’s dispute with beneficiaries are not reason enough to remove executor. In Texas, court can remove an executor only for specific reasons that beneficiaries must prove exist.
• ‌Incapacity:‌ A mental or physical inability in managing an estate’s financial and legal affairs can lead to an executor’s removal. Executor also can be let go if convicted of a crime and sentenced to jail.

According to Texas Estates Code Section 404.003, only the probate court can remove an independent executor without notice on its own motion or an interested person’s motion.

This can happen if the probate court cannot serve the executor with a notice because it doesn’t know their whereabouts, the executor eludes service or lives outside of Texas and there is no registered agent for service of process in the state.

The court can also remove the executor if they embezzle, misapply, or are about to embezzle or misapply all or some of the estate property under their care.

Texas Estates Code Section 404.0035 states that the Texas probate court can let an independent executor go with 30 days' notice on its own motion or that of an interested party, if the executor:

• Neglects to qualify in the manner and time required by law.
• Neglects to return an inventory of the estate within 90 days, unless granted an extension by the court.
  
• Fails to file a sworn affidavit or certificate, per Texas Estates Code Section 308.004.

The court can also remove an executor after sending notice and holding a hearing if the executor:

• Fails to account for

assets of the estate. Fails to file a certificate or affidavit in a timely manner. Is guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties. Has become incarcerated, incapacitated or otherwise cannot perform their fiduciary duties.
Has a material conflict of interest that prevents them from performing their fiduciary duties.