Estate of Turpin, No. 04-22-00484, 2023 WL 4610104 (Tex. App.—San Antonio July 19, 2023, no pet. h.).
After the trial court removed the independent executor from office, the executor appealed asserting the court lacked the power to remove because the party seeking the removal did not prove a statutory ground for removal under Estates Code § 404.0035. The appellate court reviewed the evidence and determined that the trial court abused its discretion because the executor was not incapable of properly performing fiduciary duties due to a material conflict of interest. The court examined facts which it admitted showed “family dysfunction,” but they were insufficient to justify removal. For example, much of the alleged bad conduct occurred prior to the executor being appointed and involved non-probate assets. Although some conflict of interest could exist because the decedent and the executor had a shared interest in property, it was insufficient to show a material conflict of interest that would prevent the executor from performing her duties properly.
Moral: Despite questionable behavior and potential conflicts of interest, courts are reluctant to remove an independent executor.