In In the Estate of Sakima, the probate court appointed a decedent’s sister as his administrator in 2011. No. 05-18-01288-CV, 2019 Tex. App. LEXIS 8209 (Tex. App.—Dallas September 10, 2019, no pet. history). After multiple show-cause notices, the probate court removed the administrator in 2018. The court held that an estate with a foreclosed home and a $30,000 bank account should not still be open after seven years. There was also a $8,000 check had not been negotiated, and the administrator filed incorrect accountings. The administrator appealed.

The court of appeals noted that a personal representative may be removed by the court if the representative: (1) has misapplied, embezzled all or a part of the property entrusted to the representative’s care; (2) fails to return any account required by law to be made; (3) fails to obey a proper order of the court; (4) is guilty of gross misconduct or mismanagement in the performance of the representative’s duties; (5) becomes incapacitated, is sentenced to the penitentiary, or from any other cause, becomes incapable of properly performing the duties of the representative’s trust, or (6) fails to make a final settlement by the third anniversary of the date letters testamentary or of administration are granted, unless the period is extended by the court on a showing of sufficient cause supported by oath or timely filed affidavit or certificate required under section 308.004 of the estates code. Id. (citing Tex. Est. Code Ann. § 361.052).

The court affirmed the probate court, holding:

At the show cause hearing, the probate court judge expressed that this case had been open and languishing without reason. Administration opened in 2011 and the show cause hearing was conducted on June 5, 2018. There had not been a significant change in the assets yet Aihara was still dealing with bank accounts and could not figure out how to negotiate a check for $8,000. In addition, despite being ordered to show cause on three occasions, a proper accounting had not been made, although Aihara made attempts to file a final accounting. Accordingly, statutory grounds existed for the removal of Aihara as administrator of the estate.

Id. The court also held that the trial court’s oral findings at the end of the hearing were sufficient and did not reverse due to a lack of written findings of fact and conclusions of law.

Interesting Note: A representative of an estate is not qualified to serve if the person is: “(1)  incapacitated; (2) a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored; (3) a nonresident of this state who: (A) is a natural person or corporation; and (B) has not: (i) appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or (ii) had that appointment filed with the court; (4) a corporation not authorized to act as a fiduciary in this state; or (5) a person whom the court finds unsuitable.” Tex. Est. Code Sec. 304.003. The most commonly litigated issue is whether an executor is suitable. The Estates Code does not define “unsuitable,” as used in section 304.003, and cases interpreting this provision have recognized that no comprehensive, discrete explanation exists delineating the attributes which make someone unsuitable under the Estates Code. In the Estate of Luthen, 2014 Tex. App. LEXIS 10625 (Tex. App.—Corpus Christi, Sept. 25, 2014, no pet.) (citing Boyles v. Gresham, 158 Tex. 158, 309 S.W.2d 50, 53 (Tex. 1958)). “It would appear, therefore, that the legislature intended for the trial court to have wide latitude in determining who would be appropriate for the purpose of administering estates.” Id. (citing Dean v. Getz, 970 S.W.2d 629, 633-34 (Tex. App.—Tyler 1998, no pet.)).

However, several cases provide guidance in determining whether the trial court acted properly in determining that a person was unsuitable to serve. An administrator was disqualified as “unsuitable” when the bank in which he owned stock claimed certain of the estate’s assets as its own property. Haynes v. Clanton, 257 S.W.2d 789, 792 (Tex. Civ. App.—El Paso 1953, writ dism’d by agr.). An individual was disqualified from serving as administrator of the estates of both a husband and his wife wherein each estate had adverse claims to the same insurance proceeds. Hitt v. Dumitrov, 598 S.W.2d 355, 356 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ). A surviving spouse was found unsuitable because she claimed property of the husband’s separate estate as community property. Ayala v. Martinez, 883 S.W.2d 270 (Tex. App.—Corpus Christi 1994, writ denied). A finding by the trial court that a surviving wife was unsuitable as the representative of her husband’s estate was affirmed where her appointment “would be inimical to the interests of the Estate.” Inimical was defined as adverse, antagonistic, and hostile. Formby v. Bradley, 695 S.W.2d 782, 785 (Tex. App.—Tyler 1985, writ ref’d n.r.e.). Family discord has also been grounds for disqualifying an applicant. As the court stated “each estate should have a representative that will assume the role of an advocate to achieve the best possible advantage for the estate.” Hitt, 598 S.W.2d at 356. If one has personal interests that are so adverse to those of the estate or the beneficiaries thereof that both cannot be fairly represented by the same person, then that person is not a proper person to administer the estate.

It is typically harder to remove a representative of an estate than to have a court hold that he is disqualified at the outset due to the breadth of the term “unsuitable.” Kappus v. Kappus, 284 S.W.3d 831 (Tex. 2009). Also, Texas courts have routinely held that a party can challenge an executor named in a will and not trigger a no-contest clause. Ard v. Hudson, No. 02-13-00198-CV, 2015 Tex. App. LEXIS 8727, at *20 (Tex. App.—Fort Worth Aug. 20, 2015, pet. dism. by agr.).

Photo of David Fowler Johnson David Fowler Johnson

dfjohnson@winstead.com
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

dfjohnson@winstead.com
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law