Estate of Allen 658 S.W.3d 772 (Tex. App.—El Paso 2022, no pet. h.).

Estate Administration

Successor Independent Executor


The named primary and first alternate independent executors of the testator’s will were unable to serve because they both predeceased the testator. Accordingly, the trial court appointed the second alternate as the independent executor. Later, this executor along with the only beneficiary of the will asked the court to permit the executor to resign and appoint the beneficiary (the testator’s son) as the successor independent administrator. They also asked the court to allow the resignation without requiring a final accounting and without notice and a hearing because of a claimed necessity under Estates Code § 361.002, that is, his advanced aged and inability to perform adequately his duties. The trial judge signed an order authorizing the resignation and appointment.


The testator’s surviving wife appeals claiming that she was entitled to notice, a hearing, and that a successor could not be appointed without her consent. The El Paso Court of Appeals agreed because the requirements of Estates Code § 404.005(a) were not followed. The trial court incorrectly followed Estates Code § 361.002 which is designed for dependent administrations. Section 404.005 requires all distributees to agree to the appointment of a independent personal representative not named in the testator’s will.


The court then decided that the surviving wife who was not a named beneficiary of the will was nonetheless a distributee whose consent was needed. See Estates Code § 22.010. The court rejected the sole beneficiary’s claim that the surviving spouse was not a distributee because she was neither an heir nor a beneficiary. Instead, the court held that because the surviving wife had a homestead interest in the family home, she qualified as a distributee. The court justified its decision by holding that a homestead interest is a life estate created by law which under Estates Code § 404.005(d) makes her a distributee. The court recognized that a homestead right is not a true life estate. However, the court said it was close enough to a life estate given that courts often state that the right to occupy the homestead “is in the nature of a life estate created by law.” Id. at 782, quoting Thompson v Thompson, 236 S.W.2d 779, 786 (Tex. 1951). Thus, the court reversed the appointment of the sole beneficiary as the successor independent representative because the surviving spouse did not consent.


Moral:  The homestead right of a surviving spouse is sufficient to make the spouse come within the definition of “distributee” under Estates Code § 22.010.


Comment:  The court ignored the fact that a homestead right is not a life estate. Instead, a homestead merely has some similar rights and liabilities to a life estate. For example, a homestead interest ends if the surviving spouse elects not to reside on the property. However, a life estate does not end merely because the holder of the life estate elects to cease residing on the property. A life estate owner never has to occupy the property for any reason. In this case, allowing a step-mother to interfere with the sole beneficiary of his father’s estate is not, in my opinion, in accord with the law and is not good public policy.