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