When it comes to handling your loved one’s estate, the executor has a series of important duties and responsibilities. If you suspect an executor is mismanaging your inheritance, you can challenge their handling of the estate.
First, know the warning signs of an executor mishandling the estate. Then, consider engaging the counsel of a probate litigation lawyer. Working with a probate litigation attorney does not mean that you will end up in litigation. It does, however, mean that you will have an attorney on your side, protecting your rights – and your inheritance – throughout the Texas probate process.
If you are concerned about the administration of your loved one’s Texas estate, watch for these warning signs:
Examples of Executor Misconduct in Texas
The following are the most common examples of executor misconduct that beneficiaries encounter during probate in Texas.
Warning Sign #1: Executor Not Communicating with Beneficiaries
As part of their fiduciary duties, the executor must keep beneficiaries reasonably informed and up to date on the administration of the estate. This is not just a matter of courtesy – it is a legal obligation.
Under Texas probate law, the executor must provide formal written notice to all known beneficiaries within 60 days after the will is admitted to probate. There are limited exceptions – for example, beneficiaries who have already appeared in the proceeding, those receiving gifts valued at $2,000 or less, or those who have already received their distributions – but for most beneficiaries, that 60-day notice is required by law.
The executor's communication duties do not stop there. Texas courts have held that executors owe beneficiaries a fiduciary duty of full disclosure – meaning the executor must proactively share all material facts that could affect your rights as a beneficiary, throughout the entire administration process. This includes information about the estate's assets, any settlements, and anything else that could impact what you ultimately receive.
What happens if an executor lies or is misleading about the estate? An executor who misrepresents the value of estate assets, conceals information about how the estate is being managed, or provides false accountings is not simply making a mistake – they may be committing fraud or be in breach of their fiduciary duty.
As a Texas beneficiary, you have the right to ask questions and demand answers. If the executor is not forthcoming, a probate litigation attorney can help you understand and enforce your rights.
Warning Sign #2: Executor Taking Too Long to Distribute the Estate
Wrapping up someone’s estate is a time-consuming process, and heirs and beneficiaries often feel impatient. Impatience alone is not a reason to hire a probate litigation attorney, but certain delays and mistakes can be costly.
How long is too long? The Texas Estates Code does not impose a hard deadline for estate distribution. However, key benchmarks apply:
- 2 Years – After two years, any beneficiary can petition the court for an accounting and to compel a distribution of the estate;
- 2-3 Years – As a general matter, most estates in Texas should be fully administered within two to three years, beginning once the executor has been appointed by the court. (Note that there is a four-year period to file a will for probate.).
If the administration of your loved one’s estate extends beyond two to three years after the executor appointment, with no clear path to closing, it may be time to consult an attorney.
Warning Sign #3: Inventory Is Delinquent
Executors in Texas must file an inventory and appraisal of all the assets in an estate within 90 days of being appointed. Unless the executor requests an extension (which should be communicated to you – see Warning Sign #1), the inventory is delinquent on the 91st day.
Often, a delinquent inventory is the first sign that an executor is not acting in good faith or not being diligent in the administration of the estate.
You should speak to a probate litigation attorney if you do not receive an inventory and appraisal of the estate within 90 days, particularly if you have not heard from the executor at all. You may be able to ask the court to remove the executor; a probate litigation lawyer can help.
Warning Sign #4: Withholding or Delaying Inheritance
An executor is not required to distribute estate assets the moment the estate is opened – and beneficiaries should expect the process to take time. Under Texas law, the executor should distribute remaining assets once all known debts have been paid (or paid to the extent the assets permit) and there is no pending litigation. However, the executor has significant discretion in timing those distributions.
That said, this discretion is not unlimited. If you believe there are no remaining debts or disputes – and the executor is simply refusing to distribute the estate to the beneficiaries – that is a different matter. Any interested person may petition the probate court for an accounting and distribution once two years have passed since letters testamentary or administration were first issued by the court.
In some cases, an executor may distribute the decedent's assets to most beneficiaries but withhold inheritance from one due to a strained relationship or as a form of retaliation. In others, an executor may distribute the estate in a way that improperly favors one group of beneficiaries over another – for example, biological children over stepchildren. This kind of selective or retaliatory distribution is a breach of the executor's fiduciary duty, and the executor can face serious civil liability as a result.
If you are concerned that an executor is using their discretion as cover for deliberate withholding – or that distributions are being made unfairly – a probate litigation attorney can help you evaluate your options.
Warning Sign #5: Insurance on Valuable Assets Allowed to Lapse or Not Adequate
Some of the executor’s responsibilities are to manage estate assets and protect the decedent’s personal property. If the decedent owned a house, this might mean paying the mortgage, taxes, and insurance until the house is sold or passed to an heir.
Letting insurance on valuable assets lapse or purchasing insurance that does not fully protect valuable assets are forms of executor misconduct.
If an executor is not taking care of your loved one’s property, you may need to speak to a probate litigation attorney.
Warning Sign #6: Selling Estate Assets for Less Than They’re Worth
The executor must act in the best interests of the estate and its beneficiaries. Selling estate assets for less than they’re worth is rarely in the best interests of the estate and therefore can constitute mismanagement of the estate. Often, the executor will get a kickback for selling someone a discounted asset or sell assets at a discount as a favor or gift to an associate or loved one.
Generally, acting in the best interests of the estate and its beneficiaries means selling estate assets for as much as possible – not giving away assets or getting kickbacks for unbeatable prices.
If you have concerns about how estate assets are being sold – or who they are being sold to – share them with a Texas probate litigation attorney.
Warning Sign #7: Making Creditor Claims to an Estate or Paying Personal Expenses with Estate Assets
One of the first things an executor should do is set up a separate bank account to pay bills and make deposits on behalf of the estate. Otherwise, the executor could fall prey to commingling assets (mixing personal funds with estate funds) and misusing estate assets.
Sometimes, an executor is also a beneficiary or a creditor, but they should avoid paying themselves until estate administration is complete. Furthermore, although Texas estate law authorizes an executor to seek compensation from the estate in exchange for their service, those fees are capped at a certain amount.
When executors improperly pay themselves for their services, use estate assets to handle personal expenses, or make claims against the estate they are supposed to protect, they are mishandling the estate and can be removed and held legally accountable.
Please note that, under certain conditions, executors may use estate assets to protect or preserve the assets of the estate and pay necessary expenses. If an executor acts in good faith and uses estate monies to hire a lawyer to defend a contested will, for example, that generally would not be considered a misuse of estate assets. Whether or not the executor meets these requirements depends on the facts and circumstances of each case.
Still, if you are concerned an executor is stealing from the estate, you should speak to a probate litigation attorney before the money disappears.
Warning Sign #8: Assets Appear to Be Missing from the Inventory
A missing or incomplete inventory is not always an oversight. Sometimes it is inheritance theft – the executor deliberately omitting assets they intend to keep for themselves or distribute improperly. If you suspect an executor is stealing from the estate, do not wait for the situation to resolve itself.
Under the Texas Estates Code, any interested person can file a written complaint with the probate court alleging that property has been omitted from the inventory. That triggers a formal proceeding requiring the executor to show cause why additional property should not be included. If the court finds the complaint valid, it can order a supplemental inventory within 20 days covering only the omitted assets.
Executors who fail to file a complete inventory also face fines and personal liability for any damages that result from the omission.
What Are the Duties of an Executor?
The executor of an estate is responsible for locating the will, filing it with the probate court, notifying banks, credit card companies, and government agencies of the decedent’s death, deciding what kind of probate is necessary, and representing the estate in court.
The executor must also set up a separate bank account for the estate, file an inventory of the estate’s assets with the court, give notice of the estate and a copy of the will to the beneficiaries, and take care of all assets until they can be distributed.
Finally, the executor must pay the decedent’s debts and taxes, distribute assets, and dispose of other property according to the will.
At all points during the probate process, the executor has a duty to act in the best interests of the estate and its beneficiaries and keep heirs and beneficiaries informed. This fiduciary duty is first and foremost to the decedent’s wishes as communicated in their last will and testament. If there is no will, the executor or administrator still has a duty to act in the best interests of the decedent’s heirs, who will inherit the decedent’s estate pursuant to the laws of intestacy. See more below.
As part of their fiduciary duty, the executor must also act like a reasonably prudent person would in similar circumstances, act impartially, and be honest and fair in their dealings.
Please note that serving as executor is time-consuming and difficult, and it is appropriate for an executor to be compensated. Many states set compensation based on the complexity of the estate, or the will itself may specify compensation.
If the executor has potentially violated their fiduciary duty to the estate and its beneficiaries or handles things in a way that is dishonest or unfair, those concerned with the estate may bring a claim against the executor in court.
These Rules Apply Even When There Is No Will
When a person dies without a will, their estate still needs to be probated and the court still needs to appoint a person to administer the estate. That person is called an “administrator” rather than an “executor”. There are many different types of estate administrations under Texas law but, in general, the rules listed here apply to both administrators and executors.
If your loved one died without a will and the court appointed an administrator of their estate, and if you notice the administrator engaged in any of the actions listed above, consider contacting a probate litigator to discuss and enforce your rights.
Who Pays the Legal Fees if the Executor is Mishandling the Estate?
Plaintiffs (beneficiaries) are responsible for their legal fees. Generally, the executor can use estate funds to defend themselves in suits against the executor or against the estate. Challenging an executor can be risky, and you should only do it if you are sure something is wrong.
Losing a case against an executor cannot only cost you money but also reduce the value of the estate.
Does a Mishandled Estate Always Result in Litigation?
Fortunately, no. Sometimes, an executor’s mishandling of an estate is an honest mistake or mere laziness, and the matter can be solved through simple intervention and negotiation. In other cases, mediation can help you get things back on track.
When Should I Confront an Executor About Mishandling the Will?
Don't jump to conclusions. Unguarded actions could jeopardize the estate assets that you are trying to protect. Instead, discuss your rights and legal options with the probate litigation attorneys at Hendershot Cowart P.C. If you are worried your loved one’s estate is at risk, our team will create a strategy to protect your interests as a beneficiary.
If you are not getting the unwavering commitment you deserve from the executor of your loved one’s estate, get it from us – call us at (713) 783-3110 or contact us online to schedule an appointment today.