Posted by: Ruby Bolton
August 18, 2008
Topic: Probate Considerations

  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.  While most executors are honest, I have seen 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 the estate.  There are several remedies that are available.

     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 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 accounting.

   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 the 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 281-351-7897 to schedule an apointment in our office in Tomball, or The Woodlands.  Conroe clients may contact our office at 936-271-2671.  We represent clients from Magnolia, Montgomery, Spring, Klein, Humble, and Conroe, as well as other areas located in Harris and Montgomery County.l

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