In re Estate of Gaines, 262 S.W.3d 50 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

Estate Administration

Independent Administration

Appointment of Independent Executor


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


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.