When Is Someone “Unsuitable” To Serve As Independent Executor Of a Texas Estate?

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In In The Estate Of Eric Johnson, an August 26, 2021 opinion from the Second Appellate District of Texas at Fort Worth, the Court affirmed the Texas probate court’s finding that the nominated independent executor was unsuitable to serve as independent administrator of the Decedent’s estate.

The Facts of In the Estate Of Eric Johnson

Eric Johnson passed away in 2019.  At the time of his death, Eric was married to Jane for the second time.  Eric and Jane had three children – Sesin, Delin, and Janelin.

Eric’s will named Sesin as independent executor of his estate.  Jane filed an opposition to Eric’s appointment.  Jane complained that Sesin was disqualified to serve, but did not state why.

At the hearing on Jane’s opposition, Sesin and Jane testified.  Evidence showed that there was a great deal of conflict between the siblings and their mother which worsened when Eric was moved out of the hospital and back home under hospice care during the end of his life.  Text messages also showed that the three children took part in caring for their father when he was hospitalized and at home under hospice care.

The undisputed testimony at the hearing was that Sesin was not incapacitated, had not been convicted of a felony, and had appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate. See Tex. Est. Code Ann. § 304.003. The testimony did show that Sesin removed property from one of the homes owned by one or both of his parents, administered morphine to his father, and borrowed $149,000 from his father—all while Eric was hospitalized or under hospice care.

The evidence also showed three residences owned by Eric, Jane, or both, in Forth Worth, Arkansas, and Georgia.  Jane called the police in Arkansas to report that her children had committed a crime by removing property from the home.  The Arkansas home had been purchased by Eric in 2012, while Jane and Eric were divorced and before they remarried.  The will provided that the Arkansas property was left to Jane and the three children in equal shares.  Sesin testified that he did in fact remove certain furniture items from that home to prepare the home for sale. He testified that he did this while his father was alive and that the plan to remove the property to prepare the home for sale was not his idea.

Other key evidence showed that Sesin, the nominated independent executor:

  • Named a Texas resident as his registered agent;
  • Has never been convicted of a felony
  • Has never been found incompetent by a court of law
  • Has been questioned by the police regarding property taken from the residence owned by decedent and his wife, and is still in possession of the property
  • Owns his own business
  • Received a loan for $149,000 from the decedent shortly before his death

 

Additional evidence showed that:

  • Evidence was presented that the loan was for Sesin to obtain a government contract, but that he might have told Decedent it was to save his house
  • Decedent was ill and taking morphine when the loan was requested
  • Sesin was the one administering the morphine to Decedent
  • Sesin paid for the Decedent’s funeral in the amount of approximately $70,000
  • The loan from Decedent to Sesin was still outstanding
  • It is unclear if the Estate has any interest in the Georgia real property
  • The surviving spouse might have a homestead interest in the Fort Worth property
  • There is discord in the family, and the surviving spouse is opposed to the appointment of her son, Sesin, as independent executor
  • Sesin’s own testimony raised doubts about his trustworthiness

 

The Texas probate court concluded that Sesin was unsuitable to serve as independent administrator of the decedent’s estate, and found him unqualified pursuant to Texas Estates Code 304.003(5).

What Are the Basic Requirements To Serve As an Estate Executor In Texas?

To serve as an executor or administrator of a Texas estate, the person must have capacity and not have a felony conviction.  Tex. Est. Code Ann. § 304.003.  If a nonresident of Texas, the person must appoint a resident agent to accept service of process in all actions or proceedings with respect to the estate.  The person must not be found “unsuitable” by the court.  Read Who Can Serve As a Personal Representative In Texas?

Who Has the Burden Of Establishing an Applicant Is Unsuitable To Serve as Executor Or Administrator?

The Texas Estates Code provides the priority order of persons qualified to serve as a personal representative. See Tex. Est. Code Ann. § 304.001(a)(1).

When the applicant is among those named in the Estates Code as a person entitled to priority, the party opposing the appointment has the burden of establishing the applicant’s disqualification. In this case, Jane had the burden of establishing that Sesin was unsuitable to be appointed independent executor of Eric’s Texas estate.

When Is Someone Unsuitable To Serve As an Executor In Texas?

Unsuitability is not defined in the Texas Estates Code, and case law has not delineated any comprehensive, discrete explanation of the attributes that make someone unsuitable. “It would appear, therefore, that the legislature intended for the trial court to have wide latitude in determining who would be appropriate for the purpose of administering estates.” Brittingham Sada de Ayala v. Mackie, 158 S.W.3d 568, 572 (Tex. App.—San Antonio 2005, pet. denied) (quoting Dean v. Getz, 970 S.W.2d 629, 633 (Tex. App.—Tyler 1998, no pet.)).

The Texas Appellate Court stated:

The trial court found that Sesin’s own testimony raised doubts about his trustworthiness. The evidence showed that Sesin took property from a home in Arkansas and was questioned by the police concerning that property, which remained in the possession of Sesin at the time of trial. On direct, Sesin testified that he received a loan for his business from Eric in January or February. The text messages and the cross-examination actually showed that the loan was obtained at some point after March 19—less than a month before Eric’s death. Sesin’s testimony was that Eric was terminally ill at the time he requested the loan and that it was necessary for Eric to accompany him and Janelin to the bank to get the bank to release the funds. Sesin was administering morphine, when requested by Eric, during this same time period. The text messages also show that the siblings were all involved in facilitating the change in Eric’s power of attorney in a manner that would insure that Jane had no advance notice. On cross-examination, Sesin was also asked questions about the fiduciary duty of an executor that required “high trust and responsibility.” Jane’s counsel followed that with questions concerning how Sesin would treat interests Jane might have in two houses owned by Eric, Jane, or both. Under the will, Jane had no claim to the Fort Worth property. Sesin testified that when Jane first read the will that was later offered into probate, Jane asked Eric to leave her the house in Fort Worth. Sesin recounted that Eric “adamantly denied her and said that was for his children.” While the Georgia property was not specifically addressed in the will, a residual clause disposed of the residue of Eric’s estate equally between Jane and the three children.

The Court found that the Texas probate court did not abuse its discretion in finding that Sesin was unsuitable to act as executor of the estate:

The evidence showed there was substantial discord between Sesin and Jane, and the trial court made that specific finding.8 When a claim against the estate is controversial, the trial court is within its discretion to evaluate whether the claim against the estate presents such a conflict that the executor, who is also a claimant, is not suitable to act as an administrator. See In re Estate of Vigen, 970 S.W.2d at 601; Beevers v. Lampkins, No. 07-11-0021-CV, 2012 WL 1520432, at *5 (Tex. App.—Amarillo May 1, 2012, no pet.) (mem. op.). There is also some evidence to support the trial court’s finding of doubt as to Sesin’s trustworthiness due to inconsistencies in his testimony concerning the loan and due to the surreptitious manner in which he and his siblings operated to get Eric to make changes to important legal documents without Jane’s knowledge. Because this is some evidence that Sesin pursued his own self-interests over the interests of Jane, the trial court’s determination that Sesin was unfit to serve as executor was neither arbitrary, nor unreasonable, nor made without reference to guiding principles. See In re Estate of Vigen, 970 S.W.2d at 601.

The determination of whether an applicant for executor or administrator is unsuitable is one left squarely to the Texas probate court’s discretion.  If evidence exists to support the probate court’s finding of unsuitability, the decision will likely be upheld on appeal.

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