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Probate Law

Statutes, books, and online resources on the topic of probate law in Texas.

What is an executor?

An executor is the person designated in the will to carry out the deceased person's wishes. This is often a close family member or another trusted individual. 

In estate administration, the court must first approve the executor. The executor will then collect and distribute the estate property. This is almost always done with the help from an attorney.

If there is no will, the personal representative is called an "administrator." If there is a will but the executor can't serve for any reason, the court will also appoint an administrator.

Understanding the Law

What does an executor do?

Executors and administrators have a significant number of tasks and responsibilities. The duties will vary based on the situation and may include:

After 15 months, any party involved in the probate proceedings can ask the executor for a detailed accounting report. Additional requests may be made every 12 months. 

Texas Law

Understanding the Law

Who can be an executor?

Section 304.001 of the Estates Code lists potential candidates in the order of priority. In most cases, it will be an executor listed in the will, a spouse, a beneficiary, or a family member. If nobody initiates administration, a creditor or another interested party may also qualify. 

Executors and administrators must meet certain requirements. The following persons are generally disqualified from serving:

  • incapacitated persons;
  • people with a felony conviction;
  • out-of-state residents without a Texas agent or attorney;
  • corporations that are not authorized to serve as fiduciaries in Texas; 
  • persons found unsuitable to serve by the court.

If the will names an executor who has a felony conviction, the court may sometimes make an exception. These laws are in Section 304.003

Texas Law

Understanding the Law

How is an executor appointed?

The person who wants to serve as an executor (or an administrator) must apply with the court for letters testamentary (or letters of administration). Even if the will nominates an executor, they must still apply and go through the approval process. This is often done at the same time as the application to admit a will to probate

If there is no will, an application for letters of administration is usually filed together with an application to determine heirship. 

Texas Law

Understanding the Law

Does an executor get paid?

Yes, Texas allows an estate representative to receive a reasonable compensation for their work. The executor's fee is paid from the estate funds and counts as income for tax purposes.

Section 352.002 of the Estates Code caps the fee at 5% of the estate's market value, excluding cash, certain bank accounts, and life insurance. The court may increase or reduce the compensation based on specific circumstances.

Sometimes the executor's fee is specified in the will, in which case the payment can exceed the amount allowed by the statute.

Texas Law

Understanding the Law

How can an executor be removed?

If an executor or administrator is unqualified or can't properly manage the estate, an interested person may:

  • prevent the executor from getting appointed; or
  • request the executor's removal.

Qualifying reasons for removing an independent executor include but are not limited to:

  • executor not meeting required qualifications;
  • out-of-state executor not having a Texas resident agent;
  • inability to find the executor;
  • embezzlement or misuse of estate funds; 
  • gross misconduct or mismanagement of the executor's duties;
  • failure to file required documents;
  • incapacitation or imprisonment;
  • material conflict of interest.

The court will typically need to appoint a replacement administrator to take over the removed executor's duties. 

Texas Law

Understanding the Law