Executor problems

What an executor owes you

An executor is a fiduciary: someone trusted with property that belongs to others. Texas law requires a fiduciary to act with loyalty and good faith and to deal fairly and honestly, and forbids them from concealing anything that affects the people they serve. The same standard applies to a court-appointed administrator, a trustee, and a person acting under a power of attorney.

Being named executor doesn’t make the estate theirs. It makes them responsible for it.

What is a fiduciary? · A power of attorney creates a fiduciary duty

What it looks like when something is wrong

• Months have passed and you’ve heard nothing, and you’ve never seen a list of what the estate owns.
• The executor is living in the house, or has moved family into it, and nothing is being sold or divided.
• Estate property was sold, sometimes to the executor or to someone close to them.
• Accounts or property you knew about don’t appear anywhere.
• Your questions are met with “that’s none of your business.”

Estates take time, and any one of these can have an innocent explanation. It’s the pattern that matters.

What you’re entitled to

• A list of what the estate owns. Within 90 days of qualifying, the executor must file a full inventory with the court. In many estates an independent executor may instead file a sworn statement that the beneficiaries have each received the inventory directly. Either way, a beneficiary is generally entitled to see it. If something is missing or undervalued, raise it while the estate is still open; it is much harder once the estate is closed. Estate inventories
• An accounting. Fifteen months after the executor was appointed, anyone with an interest in the estate can demand a sworn accounting showing what came in, what went out, and what is left. A trust beneficiary can demand a written accounting from the trustee, and if it isn’t delivered within 90 days, can ask the court to require it. Executor accountings · Trustee accountings

When a court will replace an executor or trustee

Not because the beneficiaries don’t like them. The law sets out specific reasons, including:

• failing to make an accounting that the law requires;
• gross misconduct or gross mismanagement;
• a material conflict of interest, such as an executor treating estate property as their own;
• misapplying or embezzling estate property.

A trustee can be removed for a material violation of the trust that causes a material loss, for failing to account, or for other cause the court finds. The court can also order property that belongs to the estate to be turned over.

Removing an executor · Removing a trustee or other fiduciary · Can an executor sell property to himself? · A trustee’s conflict of interest

What you have to prove

A claim that an executor, trustee, or agent under a power of attorney broke their duty generally comes down to three things:

1. They owed you a fiduciary duty. For an executor, administrator, trustee, or agent under a power of attorney, this usually isn’t in dispute. The role creates the duty.
2. They broke it. For example, by keeping property for themselves, favoring one beneficiary over the others, hiding information, or letting estate property waste away.
3. It caused you harm, or gave them a benefit they shouldn’t have had.

Not every bad outcome is a breach. An executor isn’t responsible for every decision that turns out badly. A reasonable judgment call that didn’t work out is different from ignoring the estate or putting their own interests first.

What the court can do

Depending on the facts, the probate court can:

• Order an inventory or an accounting. If an executor doesn’t provide a demanded accounting within 60 days, you can ask the court to order one.
• Remove the executor or trustee and appoint someone else.
• Order estate property turned over to the person entitled to it.
• Undo an improper transaction, or require them to pay back what the estate lost.
• Reduce or deny their fee, if they didn’t manage the estate prudently or were removed.

What evidence matters

The court file. The will or trust, the court order appointing the executor, the inventory, and any accountings. The will or trust also matters because it may give the executor or trustee specific powers, or limit them.

Financial records. Statements for the estate’s accounts, and for the person’s own accounts during the last years of their life if someone was handling their money under a power of attorney.

Records of anything sold. Deeds, closing statements, appraisals, and who the buyer was. A sale to the executor, or to someone close to them, at a low price deserves a close look.

Who has been using estate property. Who lives in the house, drives the cars, collects the rent or the mineral payments.

Your communications. Texts, emails, and letters with the executor, especially your requests for information and their answers, or silence.

Money moved before the death matters too. Someone who handled a parent’s money under a power of attorney owed the same duty. Can a power of attorney be used to create a trust?

What to do next

1. Get the court file. The will, the order appointing the executor, and the inventory are usually filed with the county clerk where the person lived. Many counties have them online.
2. Ask for the inventory in writing. If 15 months have passed since the executor was appointed, demand a sworn accounting in writing. Keep a copy and note the date.
3. Make a list of what you know they owned. Then compare it with the inventory. Anything missing or valued too low should be raised while the estate is still open.
4. Keep a timeline. The date of death, when the executor was appointed, and every request you made and every answer you got.
5. Keep the messages. Texts, emails, and letters with the executor or trustee. Their own words often matter more than anyone’s recollection.
6. Watch the four-year limit. Note when you first learned something was wrong. That date can matter.