In re Estate of Montemayor, No. 04-14-00391-CV, 2015 WL 1875978 (Tex. App.—San Antonio Apr. 22, 2015, no pet.).

Estate Administration

Independent Administration

Removal of Independent Executor


The trial court removed Independent Executor. The court based its decision on evidence that he lived in the house which was the main estate asset, was not making good faith efforts to sell the house, was not making necessary repairs, and prevented the other beneficiaries from accessing the house. He also stated that he would live in the house until the day he died. The order stated that he was guilty of gross mismanagement and was incapable of performing his fiduciary duties due to a material conflict of interest and thus removal was authorized under Estates Code § 404.0035(b)(3), (5). Independent Executor appealed.


The appellate court affirmed. The court explained that the trial court’s decision is reviewed under an abuse of discretion standard and there was no evidence of such abuse. The court also rejected Independent Executor’s claim that removal was improper because the pleadings did not specifically use the terms “gross misconduct” and “gross mismanagement” since the pleadings gave fair notice by alleging breaches of fiduciary duty and self-dealing.


Moral:  A trial court’s order removing an independent executor from office will be difficult to overturn on appeal.