Under Texas law, you can be removed as the executor of an estate for a number of reasons, although your conduct must be quite egregious for removal. Even if you have an apparent conflict of interest between your duties as an executor and rights as a beneficiary, if designated as one in the will, a Texas court may be reluctant to remove you unless you have clearly failed to carry out your fiduciary duties of honesty and good faith toward both the creditors and beneficiaries of the estate.
Failure to Perform Duties
Three of the six grounds for removal of an executor deal with a failure to perform required statutory duties. For example, you are required to file with the probate court an inventory of the estate's assets and a list of creditors' claims against the estate within 90 days, unless the court approves an extension of time. You also must file other required court documents in a timely manner.
Read More: Duties for a Co-Executor of a Will
Two of the six grounds to remove an executor are for egregious misconduct. If there is sufficient evidence to believe you have "misapplied or embezzled," or are about to misapply or embezzle, property under your control, you can be removed. Similarly, if you are proven to be guilty of gross misconduct or gross mismanagement in the performance of your duties, you can be removed. The Texas Supreme Court emphasizes the use of the word "gross" in the statutes, setting a high bar for those who wish to challenge and oust an executor.
If an executor is incapacitated and can't properly perform his duties, removal can occur. If you are convicted and sentenced to a penitentiary, you are considered incapable of serving under Texas law. Although not explicitly cited as a conviction in Texas's probate code, a court may consider you legally incapacitated if you are too ill to carry out your duties or suffering from dementia.
Conflicts of Interest
The Texas Supreme Court held that a potential conflict of interest is not enough to oust an executor. Since spouses and family members are commonly appointed as executors of an estate and named as beneficiaries, executors frequently have an apparent conflict of interest. If such status was enough for removal, it would undermine the right of the deceased to name a family member as executor and interfere with the executor's ability to carry out his duties. For these reasons, a potential conflict does not equal actual misconduct.
- OneCle: Probate Code 149c: Removal of Independent Executor
- In the Supreme Court of Texas: Kapus v. Kappus
- Free Advise: Is It Possible to Remove an Executor From an Estate?
Jim Thomas has been a freelance writer since 1978. He wrote a book about professional golfers and has written magazine articles about sports, politics, legal issues, travel and business for national and Northwest publications. He received a Juris Doctor from Duke Law School and a Bachelor of Science in political science from Whitman College.