In re Estate of Hoelzer

In Estate of Hoelzer, the Beaumont Court of Appeals considered the County Court's removal of an executor.  The executor intended to apply estate funds to pay $150,000 for a claim brought by himself and his three siblings. However, another court had previously ruled that such claim was barred by limitations. In approving the removal, the Court of Appeals noted:

Under section 149C, a trial court may remove an executor when “sufficient grounds appear to support belief that [the independent executor] has misapplied ... or is about to misapply ... all or any part of the property committed to [the independent executor's care.]” TEX. PROB.CODE ANN. § 149C(a)(2) (emphasis added). In this provision, the word “belief,” preceded by the words “appear” and “support”, does not imply a requirement of certitude. See id. Rather, it appears the Legislature intended to give discretion to the court to remove an independent executor under this provision when sufficient grounds indicate to the judge an effort by the independent executor to misapply estate property. See Kappus, 284 S.W.3d at 836 (“engaged in subterfuge or wrongful misuse”).

In deciding to remove Richard, the court was not required to determine the merits of Richard's claim as a wrongful death beneficiary to any future settlement payments, or to decide the limitations issue. On this record, the judge could reasonably conclude “sufficient grounds appear to support belief” that Richard intended to apply any funds received by the estate to pay a judgment-barred claim, a claim he did not list on the amended inventory presented to and approved by the court. See Tex. Prob.Code Ann. § 149C(a)(2); Black, 835 S.W.2d at 630, n. 10. The court could reasonably conclude under the circumstances of this case that the process Richard followed as independent executor to pursue his contested adverse claim against the estate was “sufficient grounds” for Richard's removal under section 149C(a)(2).

The key point is that an executor's removal is justified if there is a reasonable belief he will misapply estate property due to a conflict of interest. J. Michael Young - Texas Probate Litigation Attorney