Who can Serve as an Executor or Executrix of an Estate in Texas?

I am often asked whether or not someone can serve as an Executor or Executrix of an estate.  That topic is addressed in Section 304.003 of the Texas Estates Code.  Instead of stating who IS qualified to serve, that provision of the law instead identifies persons who are disqualified from serving as Executor or Administrator of an estate.  This law specifically provides that a person is not qualified to serve if he or she is:

  1. incapacitated (the law is not clear about whether this is directed at mental or physical incapacity, but I think that an argument can be made for both);
  2. a person convicted of any felony, unless he or she has been pardoned or has had his or her civil rights restored;
  3. a nonresident of Texas who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or had that appointment filed with the court;
  4. a corporation not authorized to act as a fiduciary in Texas; or
  5. a person whom the court finds unsuitable.  (There is no guidance in the statute about the term “unsuitable”.  However, there are several cases that discuss the circumstances when a court has actually found a person to be “unsuitable”.  In one instance, the decedent’s wife was found to be “unsuitable” because she claimed that her husband’s separate property was instead community property.  In another case, the court found the named executrix to be “unsuitable” because the person was “adverse, antagonistic, and hostile”.  In another case, the court declared the administrator to be “unsuitable” because the bank in which he owned stock claimed some of the estate’s assets as its own property, creating a clear conflict of interest.)

Another provision in the Estates Code addresses the order in which people can be selected to serve as the Executor/Executrix/Administrator.

Sec. 304.001.  ORDER OF PERSONS QUALIFIED TO SERVE AS PERSONAL REPRESENTATIVE.

(A) The court shall grant letters testamentary or of administration to persons qualified to act, in the following order:

  1. the person named as executor in the decedent’s Will;
  2. the decedent’s surviving spouse;
  3. the principal devisee of the decedent (the person who is getting the biggest part of the decedent’s estate);
  4. any devisee of the decedent (anyone the decedent is leaving something to);
  5. the next of kin of the decedent;
  6. a creditor of the decedent;
  7. any person of good character residing in the county who applies for the letters;
  8. any other person who is not disqualified under Section 304.003 (above); and
  9. any appointed public probate administrator.

(B) For purposes of Subsection (a)(5), the decedent’s next of kin:

  1. is determined in accordance with order of descent, with the person nearest in order of descent first, and so on; and
  2. includes a person and the person’s descendants who legally adopted the decedent or who have been legally adopted by the decedent.

(C) If persons are equally entitled to letters testamentary or of administration, the court:

  1. shall grant the letters to the person who, in the judgment of the court, is most likely to administer the estate advantageously; or
  2. may grant the letters to two or more of those persons.

This article is not intended as legal advice.  You should consult with an attorney if you have any questions about probate.  Janis Alexander Cross would be happy to meet with you to discuss your legal concerns.