Unfortunately, executors do not always administer an estate as they are required by law to do. When an executor does not uphold certain legal duties, an interested person can file a lawsuit to remove the independent executor.
The Texas Probate Code allows a court to remove an independent executor when:
• the executor does not file an inventory (or affidavit in lieu of the inventory) within 90 days after the executor receives letters testamentary,
• sufficient grounds appear to support the belief that the executor has or is about to misapply or embezzle estate property,
• the executor fails to provide a properly demanded accounting,
• the executor fails to file a 128A affidavit as required by law,
• the executor is proved to be guilty of gross misconduct or gross mismanagement of estate property, or
• the independent executor became incapable of administering the estate because of a material conflict of interest.
While there are several grounds for removing an independent executor, it can be difficult to prove the grounds sufficiently to remove the executor. The person who files the lawsuit (the “applicant”) has the burden of proof – that is, the applicant has to prove that the executor has failed to administer the estate according to law and that the executor’s conduct has been bad enough for the court to remove him or her.
If the applicant’s grounds for removal are based on the executor’s failure to provide a document, such as the inventory or an accounting, proving the grounds for removal is not so difficult. However, if the grounds for removal are based on a ground such as gross misconduct and gross mismanagement of estate property, the applicant’s burden of proof might be more difficult to uphold due to the fact-intensive inquiry into the executor’s actions.