In re Estate of Hoelzer, 310 S.W.3d 899 (Tex. App.—Beaumont 2010, pet. denied).
After Step-mother died, Son was appointed as the successor
independent executor of Father’s estate. He then filed a claim against
Father’s estate on behalf of himself and his three siblings for
reimbursement of funds Step-mother received as the result of asbestos
litigation about twenty years ago. The probate court removed Son because
the courts had previously determined that Son and his siblings were not
creditors of their father’s estate and that any potential claims were
time-barred. Thus, under Prob. Code § 149C, Son’s actions constituted
gross misconduct and gross management as well as showing that he was
about to misapply estate funds. Son appealed.
The appellate court affirmed explaining that there was sufficient
evidence to show that Son’s actions were inappropriate under § 149C. All
that was necessary was for the trial court to determine that sufficient
grounds appeared to support the belief that Son has misapplied or is
about to misapply property of the estate, that is, to pay a
judgment-barred claim. It is not necessary for court to be absolutely
certain that misapplication has occurred or may occur in the future.
Moral: An independent executor should not pay judgment-barred claims,
especially to himself and his relatives.
Probate Code § 149C provides that the court may remove an independent
executor after the executor is cited by personal service to answer at a
time and place fixed in the notice. This specific provision governs over
Texas Rule of Civil Procedure 245 which requires at least a notice of 45
days. Thus, the Probate Court may require the executor to answer sooner
than 45 days. In addition, the court held that service on the executor’s
attorney by any method satisfies the personal service on the executor
requirement. See Prob. Code § 33(f)(1).
Moral: An executor must read any service of process carefully to
determine the time by when an answer is required and cannot rely on the
general 45 day rule.