Monday, August 30, 2010
In In re Estate of Gay, 309 S.W.3d 676 (Tex. App.—Houston [14th Dist.] 2010, no pet. h.), Brothers asserted that they were their deceased father’s “personal representatives by testamentary designation” to the United States Court of Appeals for the Tenth Circuit so they could be substituted as a party to a lawsuit that was pending at the time of their father’s death. In reality, they had not been appointed by a court as their father’s personal representatives. When they later attempted to be appointed as their father’s independent executors, the court probate court determined that they were “unsuitable” under Prob. Code § 78(c) because they misrepresented themselves before a federal tribunal. Brothers appealed.
The appellate court held that the probate court abused its discretion and acted without reference to guiding rules and principles by refusing to appoint Brothers. The court looked closely at what the Brothers actually told the court. They only said they were “named” as independent co-executors which was true. They never claimed that had been actually appointed. In addition, Brothers’ actions were designed to benefit their father’s estate by defending an appeal. The court also noted that the primary beneficiary of the will, the decedent’s wife (Brothers’ mother) was in favor of their appointment having declined to serve as the independent executrix despite being first named in the will.
Moral: A court will attempt to permit the named executor to serve because of a long-standing tradition of permitting a testator to select his/her executor. Nonetheless, prudent practice is to not “cut hairs” by making statements such as, “I’ve been named as the executor” when you have not been officially appointed unless you clearly indicate the fact of non-appointment.