Do you have what it takes to serve as the executor of a probate estate in Texas?
The law actually addresses the issue in negative terms. Instead of setting forth what a person needs to qualify, the statute describes what would cause a person to be disqualified from serving.
A person is not qualified to serve as an executor if the person
• is a minor, or
• is an adult who, because of a physical or mental condition, is substantially unable to provide food clothing or shelter for himself or herself, or care for the person’s own physical health, or manage the person’s own financial affairs, or must have a guardian appointed for the person to receive funds due the person from a governmental source, or
• is a felon (unless the person has been pardoned and had his or her civil rights restored), or
• is not a Texas resident and has not appointed a resident agent to accept service of process.
If you don’t fall under those disqualifications, you still aren’t assured the appointment. The Court could also refuse to appoint a person it finds unsuitable. The term “unsuitable” is not defined, and the Court is given broad discretion. There are a few cases where a disqualification is upheld regarding proposed executors whose personal interests are so adverse to those of the estate or beneficiaries that the executor could not be fair (such as a claim to the same insurance benefits).
There is a case or two where mere family discord or having an undisputed claim against the Estate isn’t enough to disqualify.
Keep this in mind when you name your Executor in your will, and when you agree to allow someone else to name you as an Executor. If there is going to be a lot of animosity between beneficiaries and the proposed Executor, you might want to consider moving assets out of your estate and into a Trust or a limited partnership.
Give us a call – we can help.
Virginia Hammerle is a Denton County attorney Board Certified in Civil Trial Law. For more information, visit www.hammerle.com or contact her at [email protected].
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