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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 40021
Experience:  Texas lawyer for 30 years in Estate law
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What is it called when the guardian of a person with

Customer Question

What is it called when the guardian of a person with disabilites wants to change the executor of will at current as they have/are not compent in doing their dities which has been 17 mths now? Also how would one go about this procedure, if you have time to answer this.
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Here you need to motion the court to do so.You would do this where probate has been opened here under the
Texas Estate Code.

The court can do this without notice or with notice depending on whether the court fees immediate change is needed.

Law for reference..

Sec. 404.003. REMOVAL OF INDEPENDENT EXECUTOR WITHOUT NOTICE. The probate court, on the court's own motion or on the motion of any interested person, and without notice, may remove an independent executor appointed under this subtitle when:

(1) the independent executor cannot be served with notice or other processes because:

(A) the independent executor's whereabouts are unknown;

(B) the independent executor is eluding service; or

(C) the independent executor is a nonresident of this state without a designated resident agent; or

(2) sufficient grounds appear to support a belief that the independent executor has misapplied or embezzled, or is about to misapply or embezzle, all or part of the property committed to the independent executor's care.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.53, eff. January 1, 2014.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1136 (H.B. 2912), Sec. 56, eff. January 1, 2014.

Sec.(###) ###-#### ***** OF INDEPENDENT EXECUTOR WITH NOTICE. (a) The probate court, on the court's own motion, may remove an independent executor appointed under this subtitle after providing 30 days' written notice of the court's intent to remove the independent executor, by certified mail, return receipt requested, to the independent executor's last known address and to the last known address of the independent executor's attorney of record, if the independent executor:

(1) neglects to qualify in the manner and time required by law; or

(2) fails to return, before the 91st day after the date the independent executor qualifies, either an inventory of the estate property and a list of claims that have come to the independent executor's knowledge or an affidavit in lieu of the inventory, appraisement, and list of claims, unless that deadline is extended by court order.

(b) The probate court, on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place fixed in the notice, may remove an independent executor when:

(1) the independent executor fails to make an accounting which is required by law to be made;

(2) the independent executor fails to timely file the affidavit or certificate required by Section 308.004;

(3) the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor's duties;

(4) the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor's fiduciary duties; or

(5) the independent executor becomes incapable of properly performing the independent executor's fiduciary duties due to a material conflict of interest.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1136 (H.B. 2912), Sec. 56, eff. January 1, 2014.

Sec.(###) ###-#### ***** ORDER. (a) The order of removal of an independent executor shall state the cause of removal and shall direct by order the disposition of the assets remaining in the name or under the control of the removed independent executor. The order of removal shall require that letters issued to the removed independent executor shall be surrendered and that all letters shall be canceled of record.

(b) If an independent executor is removed by the court under Section 404.003 or(###) ###-####/a>, the court may, on application, appoint a successor independent executor as provided by Section 404.005.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1136 (H.B. 2912), Sec. 56, eff. January 1, 2014.

Sec.(###) ###-#### ***** AND EXPENSES RELATED TO REMOVAL OF INDEPENDENT EXECUTOR. (a) An independent executor who defends an action for the independent executor's removal in good faith, whether successful or not, shall be allowed out of the estate the independent executor's necessary expenses and disbursements, including reasonable attorney's fees, in the removal proceedings.

(b) Costs and expenses incurred by the party seeking removal that are incident to removal of an independent executor appointed without bond, including reasonable attorney's fees and expenses, may be paid out of the estate.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1136 (H.B. 2912), Sec. 56, eff. January 1, 2014.

It would be a motion to remove executor.

Expert:  RayAnswers replied 1 year ago.

I appreciate the chance to help you tonight.I wish you the best here, thanks again.