In re Estate of Gaines, 262 S.W.3d 50 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
The person designated by Testatrix as her independent executrix
probated Testatrix’s will and asked to be appointed as the independent
executrix. The trial court determined that she was not suitable to serve
and appointed another person. The designated person appealed claiming
that the court erred in disqualifying her because no motion to
disqualify her or opposition to her appointment was pending before the
trial court.
The appellate court affirmed. The court began its analysis with Probate
Code § 78(e) which allows the court to disqualify a person from serving
if the court finds that the person is “unsuitable.” The court recognized
that “[n]o comprehensive, discrete explanation exists delineating the
attributes which make someone unsuitable.” Id. at 56. The trial court
has broad discretion to determine whether a person is unsuitable.
The court decided that the issue of the named executrix’s qualifications
was tried by consent when testimony on the issue was taken in court
about her qualifications without objection. The court also recognized
that the trial court could still have disqualified the named executor
even if an objection had been made because the Probate Code does not
require the filing of a motion or opposition to disqualify an applicant
before the court can find a person unsuitable.
The court then examined the evidence of the named executrix’s
suitability and found that the evidence was sufficient to support the
trial court’s decision. For example, she failed to probate the will for
over three years, she attempted to get a subpoena on behalf of the
estate before she was appointed as the executrix, she collected and
distributed estate property without authority, and considered the
interests of one beneficiary over the interests of the estate.
Moral: A court may decide a named executor is unsuitable sua sponte.
Testatrix’s will created a testamentary trust. The county court
ordered a person holding property which potentially belonged to the
trust to place that property in the registry of the court. This person
appealed claiming that the county court lacked jurisdiction to issue
this order because Property Code § 115.001 grants exclusive jurisdiction
to the district court for all proceedings concerning trusts.
The appellate court rejected this argument because the case was not one
concerning trusts. Instead, it involved a matter incident to the
administration of an estate over which it had jurisdiction under Probate
Code § 5. The property the trial court ordered to be turned over the
registry was estate property although the property could later become
trust property.
Moral: A county court has jurisdiction over a decedent’s property which
is destined for a testamentary trust even though it would not have
jurisdiction over the trust itself.
Estate Administration
Creditors
Independent Administration
Creditor filed two authenticated unsecured claims with the Independent
Executrix. Independent Executrix rejected the claims and the trial court
entered orders recognizing the rejection. Creditor asserts that this was
improper.
The appellate court decided that the order was merely interlocutory and
thus the court lacked jurisdiction to decide the issue. Creditor could
still file suit under Probate Code § 313 within 90 days of the rejection
to establish her claims.
Comment: The significant part of the court’s discussion is found in
footnote 11. Id. at 62. The court decided that Probate Code § 313 was
applicable even though this was an independent administration. The court
stated that the Texas Supreme Court case of Bunting v. Pearson, 430
S.W.2d 470, 473 (Tex. 1968), which held that this section did not apply
to an independent executor nonetheless would apply to an independent
administrator. This distinction is, in my opinion, highly problematic.
The Bunting court did not make such a distinction and the court cites no
authority for its conclusion that Bunting does not apply to an
independent administrator.
Moral: It is possible that Probate Code §§ 309, 310, and 313 still apply
to independent administrators although they do not apply to independent
executors.