Estate Administration

Remedy for Improper Sale

In re Estate of Hernandez, 112 S.W.3d 304 (Tex. App.—El Paso 2003, pet. denied).


As litigation proceeded to demonstrate Executrix’s gross mismanagement of estate property, the trial court judge ordered that a parcel of real property not be sold at this time. Nonetheless, Executrix sold the parcel to her son. The trial court set aside this sale even without a specific request to do so. Executrix appealed.

The appellate court affirmed. The court rejected Executrix’s claim that the court must base its order on a specific request to set aside the sale. The court discussed Probate Code § 352 which prohibits this type of sale and concluded that the section does not require any specific form as long as it is filed in the appropriate court and a hearing is held with adequate proof before the court sets aside the sale. The court also rejected Executrix’s claim that she was being deprived of property without due process of law – she did not have an interest in the property sold to her son unless, as was alleged, she was actually the indirect purchaser of the property in violation of the statute. Likewise, the court rejected the argument that Executrix’s son had to be joined as a party.

Moral: To avoid this type of situation, the personal representative should not make sales of estate property that violate § 352 and should not ignore court orders which prohibit the sale of estate property.