A Texas court will remove an independent executor only on one of the grounds the Estates Code lists. Whether the family likes the executor, or would rather have someone else in the job, doesn’t enter into it. The question for the judge is whether the evidence fits a statutory ground.
Most of our removal cases start with a written demand for an accounting. We send it before we file anything.
Under Texas Estates Code Section 404.001, any person interested in the estate can demand an accounting from the independent executor once fifteen months have passed since the clerk first issued letters testamentary or of administration. If the executor doesn’t deliver it within sixty days after receiving the demand, the person who made the demand can ask the probate court to order it.
If the administration is honest and just slow, the accounting usually resolves the dispute before anyone runs up legal fees. If it isn’t honest, the refusal to account or the gaps in what comes back become the strongest evidence in the removal case. Judges give more weight to a petition that attaches an unanswered statutory demand than to one that only alleges mismanagement.
Texas Estates Code Section 404.003 allows removal without notice. It applies when the executor can’t be served because their whereabouts are unknown, they’re avoiding service, or they live out of state without a designated resident agent. It also applies when there are sufficient grounds to believe the executor has misapplied or embezzled estate property, or is about to.
Section 404.0035 covers removal after the executor is personally served and has a chance to answer, and most cases go this way. The grounds are failing to make an accounting required by law, gross misconduct or gross mismanagement, becoming incapacitated or being sentenced to the penitentiary, and a material conflict of interest that leaves the executor unable to properly perform their duties.
The court can also remove an executor on its own motion after thirty days’ written notice. That applies when the executor didn’t qualify in the manner and time the law requires, didn’t return an inventory or an affidavit in lieu of inventory before the ninety-first day after qualifying (unless the court extended that deadline), or didn’t timely file the affidavit or certificate required by Section 308.004.
Section 404.0035 took effect in 2014 and was amended in 2017 and again in 2023, so check that anything you’re reading on removal reflects the current text.
A petition built on these complaints usually gets dismissed and leaves the client in a worse position. The executor now knows exactly what the objections are and has a ruling from the court approving their conduct.
A removal action is filed in the probate court where the estate is pending. Dallas County has three statutory probate courts under Texas Government Code Section 25.0591(d).
All three sit on the 7th floor of the George Allen Courts Building, 600 Commerce Street, Dallas, Texas 75202.
Local Rule 2.01(a)(4) requires every proceeding related, pendent or ancillary to a pending probate proceeding to be assigned or transferred to the court where the principal action is pending. In practice, the judge who appointed the executor is the judge who hears the request to remove them.
The local rules also control contested motions in the case. Before filing a motion in a contested matter, Local Rule 3.04(c) requires counsel to personally try to reach opposing counsel at least three times during business hours, on at least two business days. Under Local Rule 3.04(d), the motion has to carry a certificate of conference in one of the four forms the rule sets out verbatim, and without one the motion can’t be filed or set for hearing. The conference rarely settles anything in a removal case, but skipping it costs you the setting.
Removing the executor doesn’t end the estate. Under Section 404.0036, the removal order has to state the cause of removal, cancel the removed executor’s letters, and direct what happens to the estate assets still in their name or under their control.
Someone then has to take over. If the will names a successor executor, that person is next in line. If it doesn’t, Section 404.005 lets the distributees apply together to continue independent administration with a successor they agree on. When the family can’t agree, the court appoints someone, and a neutral third party is a real possibility. Sometimes that’s the better outcome.
Recovering losses the executor caused is a separate question from removal. That claim is a surcharge, and we usually plead it together with a breach of fiduciary duty claim.
Expect a removal case to go to mediation. Local Rule 3.03(h) lets the court refer a case to alternative dispute resolution on its own motion or by agreement of the parties and counsel, and counsel can move for mediation when they can’t agree. Removal cases settle at mediation more often than most people expect, often with the executor resigning in exchange for a release.
Bring the date letters were issued, anything you’ve received from the executor, and the cause number. The first consultation is short and free.