In re Estate of Arizola, 401 S.W.3d 664 (Tex. App.—San Antonio 2013, pet. denied).

Estate Administration

Appointment of Administrator

 

The applicant for letters of administration failed to list an heir in violation of Probate Code § 82(e).  The trial court nonetheless appointed the applicant.  The appellate court held that this error did not lead to an improper judgment as the applicant was qualified and had a superior right to serve as the administrator.  Accordingly, the court held that the appointment was proper.

 

With regard to a different estate, the court examined a claim that the appointment of an administrator was improper because the complaining party was not personally served with notice of the application.  The court rejected this claim pointing to Probate Code § 128(a) which requires service only by posting of the citation which was properly done.

 

Moral:  An application for letters should contain all of the statutory required items and notice of the application by posting, rather than mail or personal service, is sufficient.

 

Removal of Personal Representative

 

The appellate court affirmed the trial court’s refusal to remove an administrator for misapplication, waste, or embezzlement of estate assets under Probate Code § 222(a)(F) merely because he filed a motion seeking ratification of certain conduct.  The court explained that although seeking prior court approval may be a better approach, failure to do so is not clear and convincing evidence of a misapplication or embezzlement.

 

Moral:  A dependent personal representative should usual seek prior court approval (permission) rather than take the action and then seek ratification (forgiveness).



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