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.