Matter of Estate of Collins, 638 S.W3d 814 (Tex. App.—Tyler 2021, no pet. h.).
The sole beneficiary of the testator’s estate convinced the trial court to remove the independent executor from office. The beneficiary asserted that the executor in his individual capacity had misappropriate funds from a joint bank account which the executor had with the testator when he withdrew substantially more than his net contributions. The trial court determined that this was gross misconduct and a material conflict of interest under Estates Code § 404.0035(b ) and ordered the removal.
The appellate court reversed. The court explained that the joint account had survivorship rights and thus was a non-probate asset. Even if the executor’s withdrawals during the testator’s life were improper, the funds would have been returned to the joint account. The executor would then be entitled to them as the survivor. Accordingly, the court held that the trial court abused its discretion in removing the executor.
Moral: An executor’s alleged mismanagement of a decedent’s non-probate assets is not a ground for removal.
The trial court removed the independent executor from office and denied the executor’s request for attorney’s fees. On appeal, the court determined that the removal was an abuse of the trial court’s discretion. Accordingly, the court held that the executor was entitled to reasonable attorney’s fees because Estates Code § 404.0037(a) makes the award of attorney’s fees mandatory if the executor’s defense of a removal action is in good faith. Because the removal was held to improper, it follows that the defense was in good faith.
Moral: The court must award attorney’s fees if the executor defends a removal action in good faith even if unsuccessful. If the defense is successful, it is deemed in good faith and the court must award attorney’s fees.