A Texas court can remove an independent executor only on the grounds the Estates Code lists, and those grounds are narrower than most families expect. A disagreement over how the executor is handling things usually won’t qualify on its own. Here’s how removal works in the Harris County probate courts.
Most Texas wills create an independent executor. Removing one runs through one of two sections of the Texas Estates Code.
Section 404.003, removal without notice. The court can act on its own motion or on the motion of any interested person, without notice to the executor, in two situations. The first is when the executor can’t be served because their whereabouts are unknown, they’re eluding service, or they’re a nonresident with no designated resident agent. The second is when sufficient grounds appear to support a belief that the executor has misapplied or embezzled estate property, or is about to.
Section 404.0035, removal with notice. This is the path most cases take. Once the executor has been cited by personal service, the court may remove on its own motion or on the motion of any interested person for:
The court can also remove on its own motion, after 30 days’ written notice, if the executor neglects to qualify, fails to file an inventory or an affidavit in lieu of inventory before the 91st day after qualifying (unless the court extends that deadline), or fails to timely file the affidavit or certificate required by Section 308.004. That filing, an affidavit from the executor or a certificate from the executor’s attorney, confirms the required notices went out to the will’s beneficiaries, and it’s due within 90 days after the will is admitted to probate.
The conflict-of-interest ground gets overlooked, and in a family dispute it’s often the most useful one. It fits an executor who wants to buy estate property or who is in business with the estate, and it can fit one whose own share competes with the other beneficiaries’ shares. Section 404.0035 was amended in 2017 and again in 2023, so make sure anything you’re reading reflects the current text.
Slowness by itself isn’t misconduct, and neither is a bad attitude. An executor who makes a call you disagree with, sells property for less than you’d have taken, hires a lawyer you don’t like, or favors their side of the family in tone while dividing the money correctly usually won’t be removed for it.
The statute requires gross misconduct or gross mismanagement, and courts take the word “gross” seriously. Removal is a serious remedy, and judges don’t grant it because the siblings can’t get along.
In most removal cases the first real step is a demand for an accounting. The removal motion usually comes later.
Under Section 404.001, once 15 months have passed since the clerk first issued letters testamentary or of administration, any person interested in the estate may demand an accounting from the independent executor. The executor then has to furnish a sworn written exhibit detailing the estate property that came into their possession, what was done with it, the debts paid, the debts and expenses still owing, the property still on hand, any other facts needed to understand the estate’s condition, and the facts showing why the administration shouldn’t be closed.
If the executor doesn’t comply within 60 days after receiving the demand, you can file an action in the probate court to compel it. After a hearing, the court will order the accounting made by a date it sets.
After the initial accounting, you can demand further accountings at intervals of at least 12 months. The statute makes the accounting right cumulative of your other remedies, so making the demand doesn’t give anything up. Any other interested person is entitled to a copy of the accounting on request.
The accounting is often where a removal case comes together. Failure to account is itself a ground under Section 404.0035, and an accounting that does arrive often shows the self-dealing or mismanagement the rest of the case depends on.
Texas Government Code Section 25.1031(c) establishes five statutory probate courts in Harris County.
Probate Courts 1 through 4 sit at the Harris County Civil Courthouse, 201 Caroline Street. Probate Court No. 5 is at 1115 Congress Street, 5th Floor.
Under the Harris County probate courts’ local rules, removal of a personal representative is a core matter. It’s filed in the existing estate file, under the original cause number, in whichever court already has the estate. You don’t open a new case, and you don’t get to choose the judge.
Under Section 404.0036, the removal order has to state the cause and direct what happens to the assets still in the removed executor’s name or control. The executor’s letters are surrendered and canceled, and on application the court can appoint a successor independent administrator.
Section 404.0037 addresses who pays for the fight, which is usually contested. An executor who defends a removal action in good faith is allowed necessary expenses and reasonable attorney’s fees out of the estate, win or lose. When the executor was serving without bond, the party who sought removal may also have costs and fees paid from the estate.
Removal on its own doesn’t recover anything the executor took. Getting estate property back is a separate claim for breach of fiduciary duty, and it’s usually pleaded alongside the removal from the start.
Expect to mediate. Local Rule 11.1 of the Harris County probate courts provides that, except for good cause shown, only cases that have gone through a previously ordered ADR procedure will be tried, and removal cases are treated the same way. Many settle at mediation with the executor resigning and the parties agreeing on a successor, which is often a better result than a contested removal hearing.
Removal actions usually move faster than will contests, but they’re still litigation. Once you add up the accounting demand and its 60-day window, pleadings, discovery, and mediation, a contested removal commonly takes several months. If the executor is actively liquidating estate assets, raise it with the court right away instead of starting with a demand letter.
We handle contested probate matters, dependent administrations, and large or complex estates in all five Harris County probate courts. We also defend executors who have been served with a removal motion.
The first conversation is a short call, and it’s free. Bring the cause number if you have it, the date letters were issued, and a short description of what the executor has or hasn’t done.
Schedule a consultation or call (281) 219-9090.