Eastland v. Eastland, 273 S.W.3d 815 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
The probate court appointed Successor Executor even though the notice
requirements of Probate Code § 220(a) were not followed. Beneficiary
appealed.
The appellate court held that § 220(a) applies only to dependent
administrations and not to independent administrations. The court
explained that although the term “personal representative” in § 220(a)
would encompass an independent executor, § 3(aa) states that the
expansive definition “shall not be held to subject such representatives
to control of the courts in probate matters with respect to settlement
of estates except as expressly provided by law.” Section 220(a) does not
expressly include independent executors and thus the section is
inapplicable. In addition, the court explained, under existing cases it
is clear that removal and hence appointment of a independent executor is
control with respect to the settlement of the estate. The court’s
decision is also supported by the legislative purpose behind independent
administrations which is for the courts to take a “hands-off” approach
unless the Probate Code provides otherwise.
Moral: Probate Code § 220(a) does not apply to independent
administrations.
Named Successor Deemed Suitable
The court appointed the named successor independent executor after the
death of the primary independent executor. A beneficiary (the
successor’s brother) appealed claiming that the court should not have
appointed this successor. Brother alleged that the successor is
unsuitable for the position because the successor, a lawyer, had
provided legal advice to the primary executor, his mother, and that some
of this advice could have involved transactions which were a breach of
her fiduciary duties. In addition, he was involved in many matters
regarding the estate. The court reviewed the evidence and determined
that none of these conflicts amounted to “a conflict of interest
involving ownership claims by him of estate property adverse to the
clear pronouncements of the will or to the best interests of the
estate.” Eastland, at 828.
Moral: Being a beneficiary of an estate or having other dealing with the
decedent or the decedent’s estate is not sufficient, in and of itself,
to make the beneficiary unsuitable to serve as a personal
representative.