Graff v. 2920 Park Grove Venture, Ltd., No. 05-16-01411-CV, 2018 WL 2949158 (Tex. App.—Dallas June 13, 2018, pet. filed).

Estate Administration

Power of Sale


Independent Executor contracted to sell some of the testator’s real property to pay the estate’s debts. Beneficiary objected asserting that the Independent Executor lacked the authority to sell the property. Nonetheless, the sale was completed and Beneficiary brought suit on a variety of grounds, including lack of authority to sell, all of which the trial court rejected. Beneficiary appealed.


The appellate court affirmed. The court first held that claims based on fraud and conspiracy were barred by the statute of limitations. The court then focused on Beneficiary’s argument that Independent Executor lacked the power to sell. The court examined the will and noted that there was no express “power of sale” clause. However, the will did not restrict the sale and an independent executor has the authority to do any act which a dependent executor could do under court order. The existence of estate debts provided the independent executor with the needed authorization to sell estate property.


Moral:  To avoid a claim that an independent executor lacks the authority to sell estate assets, the testator should include a power of sale clause in the will.