In re Roy, 249 S.W.3d 592 (Tex. App.—Waco 2008, pet. filed).
Removal of Independent Executor
Testatrix’s will named one of her four children as the Independent Executor of her estate. The trial court removed him from office for various breaches of duty. For example, he signed leases for approximately half of the rent than Testatrix had been receiving. Once the children discovered this fact, they demanded an accounting and then objected to various items contained therein. The trial court reviewed the evidence and determined that he had violated his duties in a variety of ways including engaging in acts of self-dealing with regard to the rent-reduced leases and grossly mismanaging estate property. According, the trial court removed him from office and appointed the successor as named in Testatrix’ will. Independent Executor appealed.
The appellate court affirmed. The court began its analysis by reviewing Probate Code § 149C which provides the grounds for removing an independent executor. The court examined the evidence and determined that it was sufficient to support the trial court’s finding that Independent Executor was guilty of gross misconduct or gross mismanagement in the performance of his duties which is a ground for removal under § 149C(a)(5).
The court upheld the trial court’s denial of an award of Independent Executor’s fees in defending the removal action because he did not defend his action for removal in good faith. The court agreed that it was proper for the trial court to appointed the successor executor as named in Testatrix’s will because there was no evidence that he was disqualified under the Probate Code § 78.
Moral: An independent executor should not breach fiduciary duties by self-dealing and mismanaging estate property.