May court disqualify an executor sua sponte?

In the case of In re Estate of Gaines, 262 S.W.3d 50 (Tex. App.—Houston [14th Dist.] 2008, no pet. h.), the person designated by Testatrix as her independent executrix probated Testatrix’s will and asked to be appointed as the independent executrix.  The trial court determined that she was not suitable to serve and appointed another person.  The designated person appealed claiming that the court erred in disqualifying her because no motion to disqualify her or opposition to her appointment was pending before the trial court.

The appellate court affirmed.  The court began its analysis with Probate Code § 78(e) which allows the court to disqualify a person from serving if the court finds that the person is “unsuitable.”  The court recognized that “[n]o comprehensive, discrete explanation exists delineating the attributes which make someone unsuitable.”  Id. at 56.  The trial court has broad discretion to determine whether a person is unsuitable.

The court decided that the issue of the named executrix’s qualifications was tried by consent when testimony on the issue was taken in court about her qualifications without objection.  The court also recognized that the trial court could still have disqualified the named executor even if an objection had been made because the Probate Code does not require the filing of a motion or opposition to disqualify an applicant before the court can find a person unsuitable.

The court then examined the evidence of the named executrix’s suitability and found that the evidence was sufficient to support the trial court’s decision.  For example, she failed to probate the will for over three years, she attempted to get a subpoena on behalf of the estate before she was appointed as the executrix, she collected and distributed estate property without authority, and considered the interests of one beneficiary over the interests of the estate.

Moral:  A court may decide a named executor is unsuitable sua sponte.