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St. Mary's Law Journal

Abstract

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent that Texas courts can rely on to determine the existence of a material conflict. Arguably, this addition to section 149C will open the door to litigation, because precisely what circumstances give rise to a material conflict are not yet defined. In order to avoid court confusion over the meaning of material conflict of interest, the legislature should remove this section from the probate code. Alternatively, the legislature should consider adding another section to clarify the meaning of material conflict of interest. This section should add that when a spouse serves as an executor, this by itself does not create a material conflict of interest. Under this system, an executor would be able to continue representing an estate even though he or she may have a personal interest in the assets of the estate. This will further the goals of the independent administrator by reducing the grounds for removal and allowing testators to retain the power to choose their independent executors. By clearly defining material conflict of interest, the legislature will prevent years of litigation and protect numerous independent executors from endless attacks on their decision-making.

Publisher

St. Mary's University School of Law

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