So, You Need to Fire the Executor? A Brief Guide to Removing an Executor

As a seasoned estate planning and probate attorney in the great state of Texas, I’ve sat across the table from countless folks who are frustrated, angry, and at their wit’s end with the person in charge of a loved one’s estate. The story is often the same: the executor is moving too slowly, not communicating, or worse, there are suspicions of self-dealing and mismanagement. The big question on their minds is always, “Can we do something about this?” The short answer is maybe, but it’s a legal battle that requires careful consideration and swift, informed action. Let’s be clear from the outset: if you are seriously considering the removal of an executor, your first and most critical step is to hire an experienced probate litigation attorney. This is EMPHATICALLY NOT a do-it-yourself endeavor. The Texas Estates Code has specific, and at times complex, rules and procedures that must be followed precisely; not to mention the Texas Rules of Civil Procedure and the Texas Civil Practice and Remedies Code – all of which you may potentially come into play. An attorney will be able to assess the specifics of your situation, advise you on the strength of your case, and navigate the intricate court process. Removing an executor is not a simple matter of voicing your displeasure to a judge. Texas law favors the decedent’s choice of executor. However, removal is certainly not impossible. The Texas Estates Code provides several grounds for removal, which can include:

• Gross misconduct or mismanagement: This is a high standard and requires more than just simple negligence. It involves a willful omission of a legal duty or an intentional wrongful act that harms the estate.
• Failure to account: An executor has a duty to provide a detailed accounting of the estate’s assets, debts, and transactions to the beneficiaries. Failure to do so can be grounds for removal.
• Incapacity or imprisonment: If the executor becomes mentally or physically unable to perform their duties or is incarcerated, they can be removed.
• Material conflict of interest: An executor cannot use their position to benefit themselves at the expense of the estate and its beneficiaries.

Proving these grounds requires compelling evidence, which is where the expertise of a probate litigator becomes invaluable. Showing up in court and simply alleging one or more of these grounds without proof (and the right kind of proof) is virtually guaranteed to be a recipe for failure. I tell my clients all the time that there is a huge difference between knowing that something is true (or knowing that someone is lying) and being able to prove that it’s true (or being able to prove that someone is lying). In other words: if you can’t prove it, don’t expect to succeed. And a competent probate litigation attorney may be able to help you prove it. Many modern wills contain what is known as an in terrorem or “no-contest” clause. In essence, this clause states that if a beneficiary challenges the will and loses, they forfeit their inheritance. This can create a chilling effect on legitimate challenges. However, it’s crucial to understand that a petition to remove an executor for misconduct is not necessarily a “will contest.” A carefully drafted legal action can often be framed to avoid triggering this clause. An experienced attorney can analyze the specific wording of the clause in the will and advise on the best course of action to protect your interests without risking your inheritance. But tread carefully, as a misstep could have severe financial consequences. An executor in Texas has a fiduciary duty to the beneficiaries of the estate. This is the highest duty of trust and loyalty recognized by law. It requires the executor to act with the utmost good faith, honesty, and transparency. They must put the interests of the estate and its beneficiaries above their own. While this provides a strong legal basis for holding an executor accountable, there is a significant difference between knowing something is wrong and being able to prove it in a court of law. This is where the hard work of litigation comes in – gathering financial records, deposing witnesses, and presenting a clear and convincing case to the judge. Before embarking on a quest to remove an executor, it’s essential to have a frank discussion with your attorney about the costs. Litigation is expensive. Attorney’s fees, court costs, and expert witness fees can quickly add up. It’s a harsh reality that the executor can often use estate funds to pay for their legal defense. While a successful removal may result in the court ordering the estate to reimburse your legal fees, there is no guarantee. You must weigh the potential benefit of removing a problematic executor against the very real possibility of diminishing the estate’s assets through a protracted legal battle (even if you win). In conclusion, while the path to removing an executor in Texas is fraught with legal complexities and financial considerations, it is a necessary step in situations where an estate is being jeopardized. Arming yourself with experienced legal counsel in San Antonio is the first and most critical move in protecting your loved one’s legacy.