In Estate of Montemayor, the San Antonio Court of Appeals considered a challenge to the probate court’s removal of an independent executor. Such removals have become more difficult since the Texas Supreme Court’s opinion in Kappus v. Kappus.
The probate court removed the executor because it found that, after over three years, he had not effectively pursued resolution of the estate. That alone is not necessarily grounds for removal. But the sole asset of the estate was a house and lot. The executor moved into the house and told one of the beneficiaries that “he was going to keep the house” and that he “was going to live and die in that house.” He also changed the locks on the gate leading to the house. Furthermore, he did not pay the estate any rent for living in the house.
The court of appeals found that such conduct supported the probate court’s finding that the executor had a conflict of interest amounting to gross misconduct or gross mismanagement of the estate. The executor breached his fiduciary duty to protect the beneficiaries’ interest and allowed his personal interest to conflict with his fiduciary obligations to the beneficiaries.
In this case, it become necessary for the beneficiaries to hire an experienced probate litigation attorney to protect their interests in the estate. Often, that is the only effective means for beneficiaries to protect their interests, particularly in an independent administration.