In re Estate of Whittington, 409 S.W.3d 666 (Tex. App.—Eastland 2013, no pet.).

Estate Administration

Discharged Independent Executor as Proper Party to Contest


The court admitted the testator’s will to probate and appointed Independent Executor. After completing his duties, Independent Executor obtained a judicial discharge under Probate Code § 149E (now Estates Code § 405.003). Approximately six months later, Contestant filed a will contest and had citation served upon Independent Executor. The trial court granted Independent Executor’s motion to be dismissed from the action on the ground that he was not a proper party due to the judicial discharge. Although the trial court originally imposed sanctions on the ground that there was no existing law supporting why Independent Executor would be a proper party and that the argument to establish a new rule was frivolous, the court later reconsidered and denied sanctions.


The appellate court agreed that Independent Executor was not a proper party due to the judicial discharge. A judicial discharge is designed for the executor to “obtain a shield from any liability involving matters related to the past administration of the estate that have been fully and fairly disclosed.” Id. at 670. In addition, it would be absurd to force the executor to defend the will with his or her own money as all of the estate assets have already been distributed and there is no guarantee that the beneficiaries have retained any of those assets for reimbursement purposes.


The court also agreed that sanctions were not appropriate because this issue was a matter of first impression.


Moral: An independent executor who obtains a judicial discharge is not a proper party to a subsequent contest of the will.