Although I regularly advise clients not to appoint their children as co-executors,
I have a lot of sympathy for heirs who are not appointed executor, and
feel that they have been left out of the loop. Trust this advice, being
a co-executor with a trustee who you think is cheating you, will often
not increase your recovery in probate, but will most certainly increase
the lawyer's fee. So, while most executors are honest, there are enough
bad examples to listen carefully when someone sits across from my desk
and tells me that they think their sibling or step parent is cheating
them in probate. In such a case, there are remedies.
The first step is usually to take a close look at the inventory and appraisal.
Executors are required to file an inventory and appraisal of all the assets
in an estate within 90 days of being appointed. It is possible to get
an extension on the 90 days, but in the vast majority of cases, an extension
is not sought, and the inventory is either filed or delinquent by the
91st day. If there are assets that my client is aware of that were not
included in the inventory and appraisal, this could be the first sign
that the executor is not acting in good faith. I do, however, caution
my client that life insurance policies and accounts that have passed by
beneficiary designation or right of survivorship will not normally be
located in the inventory and appraisal.
If the executor has either not filed the inventory and appraisal, or has
filed a clearly fraudulent one, it is possible to ask the Court to remove
the executor. Frequently, however, it does not get that far. I have had
an executor file an amended inventory and appraisal, and cut checks to
the other heirs within three days of my first contacting the executor's
attorney. An attorney contact does not always produce such dramatic results,
but commonly, when the executor discovers that the other heirs have retained
their own attorney, he is suddenly much more cooperative about listing
and distributing assets in a timely manner.
The Texas Probate Code also allows any person interested in the estate
to demand an accounting from an independent executor fifteen months after
the administration is opened. The accounting must list all property belonging
to the estate, and must list what the executor did with the property.
The executor is also required to list all the debt that have been paid,
and any debts or expenses that are still owing by the estate, and any
property still being held that belongs to the estate. The accounting must
also include any facts which would justify the failure to fully distribute
the estate. The executor must also include "such other facts, as
may be necessary to a full and definite understanding of the exact condition
of the estate." If the executor does not send a sworn accounting
within 60 days, he may be taken to Court and the Judge will order the
If two years have passed since the estate was opened, an heir may petition
the Court to order the assets of the estate distributed.
If an executor fails to comply with any of the provisions above, any interested
person, or the Court on its own motion, may seek the removal of the executor.
Costs, expenses, and attorney fees of incurred in seeking removal of the
executor may be paid out of the estate.
An heir may also bring a suit for damages for failure to deliver property
when ordered. The Court will then enter an order finding the executor
liable for the original amount due, plus ten percent for each month after
the date of the demand.
Unfortunately, if the executor has spent the money and is now judgement
proof, it can be difficult to collect. For this reason, if you suspect
that an untrustworthy executor has been appointed, it may be in your best
interest to hire an attorney to represent you immediately. By communicating
with the executor's attorney, and making sure that the executor follows
the requirements of his position, it may be possible to prevent a fraud
from ever occuring.
If you would like representation in an estate for which you were not appointed
executor, please contact my office at 936-435-1908 to schedule an apointment
in our office in Huntsville or The Woodlands. Sugar Land or Stafford clients
may contact our office at 281-723-2791. We represent clients from Magnolia,
Montgomery, Spring, Klein, Humble, Conroe, Huntsville, Sugar Land, Stafford
as well as other areas located in Harris Brazoria, San Jacinto, Trinity,
and Montgomery Counties.