Are You Sure the Executor Named in Your Texas Will is Qualified to Serve?
The individual named in your Texas Will as your Executor is merely your preference. In fact, Texas Estates Code Section 304.001 sets forth the order of individuals qualified to act as the estate’s representative.
This section also grants the court the discretion to decide who is qualified to serve in an order of preference as set forth in Texas Estates Code Section 304.001(a):
- Person named in the Decedent’s will;
- Surviving spouse;
- Principal beneficiary;
- Any beneficiary;
- Next of kin;
- Creditor of the decedent;
- A Person of good character who applies for the position; and
- Any other person not disqualified under Section 304.003.
Texas Estates Code Section 304.003(2) sets forth who will be disqualified from accepting appointment as a personal representative. The Code provides that an incapacitated person, a convicted felon, a non-resident with no appointed resident agent, a corporation not authorized to act in Texas as a fiduciary, or any person found by the court to be unsuitable will be disqualified from accepting an appointment as an estate representative.
TEX. ESTATES CODE § 304.003(2). Note, that the court may also exercise its discretion in determining the person to be appointed as a representative. See Kay v. Sandier, 704 S.W.2d 430 (Tex. App.— Houston [14th Dist.] 1985 ref’d n.r.e).
Oath of Office and Letters Testamentary
Did you know that even if you name someone as Executor they still have to go to court and qualify? They even have to testify as to their qualifications and take an oath of office before Letters Testamentary will be issued by the court clerk.
In fact, the named Executor has no legal power to act until the will has been admitted to probate, they have taken the oath and letters are issued.
If you have questions regarding Texas estate planning or probate, please contact us at (972) 353-4600 or visit thewrightlawyers.com for more information.
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