Estate Administration

Successor Personal Representative

Ayala v. Mackie, 158 S.W.3d 568 (Tex. App.—San Antonio 2005, pet. denied).


The probate court denied Applicant’s motion to be named as a successor executor of an ancillary estate and appointed Mackie instead. An appeal ensued.

Appellants first argued that the probate court abused its discretion in determining that there was a continuing need for administration and the appointment of a successor personal representative. The appellate court disagreed because a review of the evidence revealed a complicated estate administration including a host of lawsuits and appeals.

The court next reviewed the probate court’s determination that Applicant was unsuitable to serve as a personal representative under Probate Code § 78(e). The court held that the probate court’s denial was not an abuse of discretion because there was evidence of conflicts of interest.

The court, however, agreed with Appellants that the probate court improperly appointed Mackie because the order did not set bond and Mackie did not file bond. See Probate Code §§ 195, 194, 181(c). Although the probate court did not abuse its discretion in appointing Mackie, the failure to require a bond made the probate court’s order voidable. The court remanded the case to the probate court for further proceedings which presumably would be to set bond as required by the Probate Code.

Moral: An order appointing a successor personal representative should set bond if bond is required by the Probate Code.