Smith v. Hodges, 294 S.W.3d 774 (Tex. App.—Eastland 2009, no pet.).

Estate Administration

Independent Administration

Sale of Estate Property


Independent Administratrix petitioned the court for permission to sell estate land asserting that the property was incapable of being partitioned. The court refused to hear the petition explaining that independent administrators are supposed to administer the estate without court oversight. Subsequently, Independent Administratrix sold the property to her daughter and son-in-law. Independent Administratrix’s siblings filed suit alleging that this type of sale needed court permission and that the sale was in breach of her fiduciary duties. The lower court granted a summary judgment setting aside the deed as void on the ground that Independent Administratrix did not comply with Probate Code §§ 331-253.

The appellate court reversed. The court explained that an independent administratrix may take any action without court approval once the inventory, appraisement, and list of claims is filed and approved unless the Probate Code specifically and explicitly provides for court involvement. See Probate Code § 145(h). Probate Code 331 dealing with the sale of real property in a dependent administration does not expressly state that it applies in independent administrations. Because Independent Administratrix was not required to comply with this section, the lower court’s rendering of a summary judgment on this ground was error.

However, a court order may nonetheless have been needed. Even if an independent administration is created by will, the independent executor cannot sell real property for partition purposes unless the will grants the executor the authority to sell. Probate Code § 150 sets forth the procedure for partitioning real property. Independent Administratrix did not follow this procedure. In dicta, the court indicated that it believed non-compliance made the sale and deed voidable, rather than void. It then explained that on remand, the sale could be set aside by showing that the sale was not for a proper purpose or that it was not in best interest of the estate. The court also provided guidance to the purchasers by explaining that they may be able to come within the innocent purchaser protection of Probate Code § 188 by showing that the sale was for a proper purpose, such as to pay debts, and that they acted in good faith and without notice of any illegality in connection with the sale.

Note: The court gave substantial guidance to both sides as to how the case should be presented and argued on remand. The court appeared to be “teaching” the lawyers on how to proceed with the case.

Moral: The ability of an independent administrator to sell estate property is not absolute and compliance with the appropriate provisions of the Probate Code is needed. If a sale is allegedly improper, the attack should be made on appropriate grounds rather than on reasons not supported by the Probate Code.