A Texas court can remove an executor who is not doing the job, and any interested person can ask it to. Before anything is filed, decide whether you want the executor replaced or want the executor made to account and do the work. That choice determines what gets filed first and what evidence you need.
Removal ends the executor’s authority over the estate. It does not, on its own, recover money the executor took or lost. Recovering that money is a separate claim for breach of fiduciary duty with its own proof, covered on the breach of fiduciary duty page. Many clients pursue both, and the two claims rely on different evidence.
After removal the court appoints a successor to finish the administration, and that successor may serve under court supervision. How a supervised administration works is covered on the dependent administration page.
Most Texas executors serve independently, without ongoing court supervision. Estates Code §404.0035 sets out the grounds for removing an independent executor after notice. They include failing to make an accounting required by law, gross misconduct or gross mismanagement in performing the executor’s duties, and a material conflict of interest that makes the executor incapable of properly performing those duties. The conflict ground often applies when the executor has sold estate property to himself, a relative, or a company he controls.
Estates Code §404.003 allows removal without notice in narrower situations. One is where there are sufficient grounds to believe the executor has misapplied or embezzled estate property, or is about to. It is used when the estate needs protection before a contested hearing can be held.
If the estate is in a dependent, court-supervised administration, removal is governed by Estates Code §361.052. Its grounds are similar and include misapplying estate property, failing to file required accounts, disobeying a court order, and gross misconduct or mismanagement.
Tex. Est. Code §§404.0035, 404.003, 361.052.
Estates Code §404.001 lets any interested person demand an accounting from an independent executor once fifteen months have passed since letters were first issued. If the executor does not comply within 60 days after receiving the demand, you can file an action in the probate court to compel it. Failing to make a required accounting is also a removal ground under §404.0035.
The demand is usually the least expensive first step. Send it in writing and keep proof of delivery. The demand and the executor’s response, or lack of one, are often the first exhibits in a removal case.
Tex. Est. Code §404.001(a), (b).
Nueces County has no statutory probate court. Removal motions are heard in the county courts at law, which have probate jurisdiction under Government Code §25.1802(a)(5) and also hear other civil matters. Filings are made with the Nueces County District Clerk, which serves as clerk for these courts in probate cases under §25.1802(n).
Section 25.1802(a)(6) gives the county courts at law concurrent jurisdiction with the district court in all actions by or against a personal representative. Complaints about an executor often involve more than the probate file, such as a sale of land or a transfer to a relative. This provision usually allows the removal request and a damages claim against the executor to be heard in the same court.
Tex. Gov’t Code §25.1802(a)(5), (a)(6), (n).
If you do not have everything on this list, bring what you have. A record of what you requested and were refused is useful in its own right.
Kreig LLC handles contested probate matters, including executor removal, breach of fiduciary duty, and contested administrations. Our other practice areas are listed on the practice page.
Bring the dates you asked the executor for information and whatever you received in response. We will review them and tell you whether there are grounds to seek removal in Nueces County.
The first consultation is short and free.