SMITH & GARG, LLC

By the Estate Planning Attorneys at Smith & Garg, LLC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Tomball, Cypress and Huntsville

An executor is defined by Black’s Law Dictionary as “One who is appointed by a testator in the will, to administer the testator’s estate.” In effect, an executor is named in a will by the testator (the one making the will) to administer his or her estate after death. Generally, with married couples, one spouse names the other spouse to be the executor of his or her estate. The executor will have some specific duties to perform. Three of them are to identify and gather the estate’s assets, make sure the decedent’s debts are paid and ensure that the remainder of the estate is distributed per the terms of the will in the case of an independent administration or per the terms of Texas law if the decedent died intestate. The executor is responsible to the heirs and beneficiaries of the decedent’s estate to act in concert with the terms and conditions of the will regarding the distribution of the estate’s assets.

The role of Executor should not be taken lightly or accepted without thorough consideration as it is a fiduciary position with great responsibility. The Executor can be sued if he fails to discharge his duties properly. Having a good understanding of the responsibilities of the position of Executor and obtaining advice from a competent attorney at Smith & Garg are crucial in fulfilling the duties of an Executor.

Executor Qualifications

To qualify, an executor must be mentally competent have not been convicted of a felony or otherwise deemed unsuitable by the court. If a felon has been pardoned, this prohibition is removed. Also the condition of a felony allows the appointment to be voidable, and not necessarily void. Additionally, if the decedent appointed his or her spouse as executor, and subsequently divorced, the spousal appointment is voided and an alternate executor will be appointed just as if the appointed ex-spouse predeceased the testator.

A corporate executor must be legally authorized to act as a fiduciary. In most cases, banks and trust companies are the only entities authorized to be corporate fiduciaries. A charitable organization can act as an executor if it is also a beneficiary of the estate.

Oath of Executor

Prior to taking the position of an executor and within 20 days of the date of the order granting letters testamentary, the applicant must take an oath stating he or she will “well and truly perform all the duties of executor of said will (or of administrator with the will annexed, as the case may be) of the estate." This oath must be taken before the executor can perform under the terms of the will.

It is possible for there to be joint executors of a will. In that event, the acts of one executor are deemed to be the acts of both. If one of the executors dies, the surviving executor can act on behalf of the estate. However, where the conveyance of real property is concerned, both executors have to join the transaction unless the court authorizes “less than all to act.”

Executor Compensation

A will can allow for the executor to be compensated for discharging his or her duties under the will. Generally, executor compensation, per statute, can equal 5% of the income of the estate and 5% of the of the estate’s expenses. This rate may or may not be adequate depending upon the complexities of the task. The executor can, if he or she believes the 5% rate is inadequate, ask the court to allow more compensation to be paid. The testator can dictate the compensation rate of the executor through will provisions. In some circumstances, compensating the executor is not an issue, especially if the executor is also a beneficiary of the will and is to receive substantial assets. An executor may even wish to forego compensation since any such compensation is considered income, which may substantially increase federal income tax liability.

Declining to be an Executor (Resignation)

In the event the named executor decides not to serve as the executor, he or she may resign by filing a document with the court outlining the desire to resign. He or she must render a “full and complete exhibit and final account, duly verified, showing the true condition of the estate entrusted to his care.” The resigning executor is not allowed to resign until he or she has the application to resign heard by the court, the exhibit and account examined, settled, and approved by the court, and until he or she has shown to the court that he or she has delivered the estate, if there be any remaining in his possession, or has complied with all lawful orders of the court with relation to his or her duty as an executor. When all the perquisites to resignation have occurred to the satisfaction of the court, an order will be issued discharging the executor from further obligation. If the executor is operating under a bond, the surety will be also discharged.

Removal of Executor

The court can, on its own initiative or on that of an interested party on the burden of clear and convincing evidence given under oath, remove an executor for any one of the following reasons: neglects to qualify in the manner and time required by law;  fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to his knowledge; having been required to give a new bond, fails to do so within the time prescribed; absents himself from the State for a period of three months at one time without permission of the court, or removes from the State; or cannot be served with notices or other processes for statutorily specified reasons.

The order of removal shall state the specific cause thereof and shall require that any letters testamentary issued to the removed executor shall, in the case of personal service of citation, be surrendered, and that all such letters be cancelled of record, whether delivered or not.  The order shall further require the remaining estate in the hands of a removed person “to be delivered thereof to the person or persons entitled thereto, or to one who has been appointed and has qualified as successor representative.”

We invite you to contact us for a consultation. Call Smith & Garg, LLC at 1-877-517-4275 or complete our contact form.