Removal of the Independent Executor
In Texas, the testator (the person making a will) has the power to designate his or her executor to be an “independent executor”. Proper use of the term “independent” to describe the executor in the will means that the independent executor may, after the will has been admitted to probate and Letters Testamentary have been issued to the independent executor, take virtually all estate related action free of the need for any hearings or approval by a Probate Court. Unfortunately, some executors take advantage of this far reaching freedom to abuse their power(s) as an executor (an executor is also a fiduciary). The Texas Probate Code allows a court, after a hearing, to remove the person designated as the independent executor of the estate when any of the following grounds have been proved to the presiding judge:
- The executor fails to timely file an inventory of the estate;
- Sufficient grounds appear to support belief that the executor has misapplied or embezzled, or that he is about to misapply or embezzle all or any part of the estate;
- The executor fails to make an accounting which is required by law to be made;
- The executor fails to timely file the notice to a governmental or charitable organization named in a will as required by Section 128A of the Probate Code;
- The executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of estate duties;
- The executor becomes an incapacitated person or is sentenced to the penitentiary or for any other cause becomes legally incapacitated from property performing his fiduciary duty.