The responsibilities of the executor of an estate generally fall under the following categories:
- Making an inventory of the estate assets within 90 days of being appointed;
- Paying the debts of the estate;
- Recovering amounts owed to the estate by others; and
- After the debts have been paid, distributing the remaining estate assets to the beneficiaries named in the Decedent's will.
An executor has certain fiduciary duties to the beneficiaries of the estate. A fiduciary duty arises when someone is appointed to a position of faith and trust and given powers over financial assets for the benefit of another. An executor's fiduciary duty is to do what is in the best interest of the beneficiaries of the estate.
Generally there is not a much oversight of an executor by the court that appoints her to that position other than requiring the executor to file an inventory within 90 days. The reason for this lack of oversight is that most wills are intentionally drafted to ask the court not to impose oversight on the executor in an effort to make the process of probate faster and cheaper.
Because executors in Texas are largely free from court supervision it is often difficult for an estate beneficiary to stop a runaway executor. However, a knowledgeable and experienced estate litigation attorney can assist you, as a beneficiary of an estate, to hold an an executor accountable when she decides to abuse the position of trust to which he has been appointed.
If a beneficiary already has in his possession hard evidence of an executor's misbehavior, holding the executor accountable is merely a matter of presenting this evidence to the probate court judge. However, typically there is merely a strong suspicion that something is wrong.
In such cases, The Texas Probate Code (the rules that govern probate court as well as executors) state that a beneficiary of an estate may demand an accounting from the executor after 15 months from the date of the executor's appointment. Unfortunately, the damage has usually been done after 15 months.
To hold an executor accountable prior to the expiration of 15 months from the date of his appointment, without hard evidence of misbehavior, requires hiring a skilled probate litigation attorney who can creatively combine prior case law and probate code provisions to create the authority needed to safeguard your future inheritance.
There are several reasons courts will remove of an executor from an estate. In general, courts will only remove an executor if it can be shown that the executor is incapable of performing the necessary duties, is unsuitable for the position, or has become disqualified since the deceased appointed him or her. It is important to remember that the executor's duties are to carry out the intent of the will by acting in good faith and within the best interests of the beneficiaries. This means that if an executor does a poor or careless job of managing the estate, this can be grounds for removal. However, to justify efforts to remove an executor, this mismanagement must be fairly serious and damaging to the estate. From what you have explained, I believe you can show that her actions have been damaging to the estate.
Further, the standard for the "best interests" of the beneficiaries is determined by the court. A severe departure from these interests may be required to remove an executor. For example, if an executor is flagrantly wasting the estate's assets, this may qualify, but if the executor simply makes an investment with which the beneficiaries disagree, this probably will not.
Grounds for removal may also include stealing from the estate, wasting the assets of the estate, refusing to obey a court order or refusing to follow accounting procedures.
Courts will not remove the executor for frivolous reasons. These may include being rude or argumentative with the beneficiaries, withholding information from the beneficiaries, refusing to invest the assets of the estate, or taking an overly long time to get the estate settled.
To remove an executor an interested person must file for a court proceeding. An interested person is an individual or business that has a stake in the estate assets, such as a beneficiary. Generally, this is limited to the beneficiaries of the will and to creditors. At this proceeding, the attorneys for both the executor and the interested person will try to show why the executor should be removed, or why he or she should remain. Before the proceeding takes place, the interested person should request an estate audit to assist in establishing the reasons for removal.
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