Texas Estates Code 404.005 – Court-Appointed Successor Independent Administrator
(a) If the will of a person who dies testate names an independent executor who, having qualified, fails for any reason to continue to serve, or is removed for cause by the court, and the will does not name a successor independent executor or if each successor executor named in the will fails for any reason to qualify as executor or indicates by affidavit filed with the application for an order continuing independent administration the successor executor’s inability or unwillingness to serve as successor independent executor, all of the distributees of the decedent as of the filing of the application for an order continuing independent administration may apply to the probate court for the appointment of a qualified person, firm, or corporation to serve as successor independent administrator. If the probate court finds that continued administration of the estate is necessary, the court shall enter an order continuing independent administration and appointing the person, firm, or corporation designated in the application as successor independent administrator, unless the probate court finds that it would not be in the best interest of the estate to do so. The successor independent administrator shall serve with all of the powers and privileges granted to the successor’s predecessor independent executor.
(b) Except as otherwise provided by this subsection, if a distributee described in this section is an incapacitated person, the guardian of the person of the distributee may sign the application on behalf of the distributee. If the probate court finds that either the continuing of independent administration or the appointment of the person, firm, or corporation designated in the application as successor independent administrator would not be in the best interest of the incapacitated person, then, notwithstanding Subsection (a), the court may not enter an order continuing independent administration of the estate. If the distributee is an incapacitated person and has no guardian of the person, the court may appoint a guardian ad litem to make application on behalf of the incapacitated person if the probate court considers such an appointment necessary to protect the interest of that distributee. If a distributee described in this section is a minor and has no guardian of the person, a natural guardian of the minor may sign the application for the order continuing independent administration on the minor’s behalf unless a conflict of interest exists between the minor and the natural guardian.
Terms Used In Texas Estates Code 404.005
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Court: means and includes:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise original probate jurisdiction; and
(3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007 - Decedent: A deceased person.
- Distributee: means a person who is entitled to a part of the estate of a decedent under a lawful will or the statutes of descent and distribution. See Texas Estates Code 22.010
- Estate: means a decedent's property, as that property:
(1) exists originally and as the property changes in form by sale, reinvestment, or otherwise;
(2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent's representative by the trustee of a trust that terminates on the decedent's death, and substitutions for the property; and
(3) is diminished by any decreases in or distributions from the property. See Texas Estates Code 22.012 - Executor: A male person named in a will to carry out the decedent
- Fraud: Intentional deception resulting in injury to another.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Independent executor: means the personal representative of an estate under independent administration as provided by Chapter 401 and § 402. See Texas Estates Code 22.017
- Judge: means the presiding judge of any court having original jurisdiction over probate proceedings, regardless of whether the court is:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise probate jurisdiction; or
(3) a district court exercising probate jurisdiction in a contested matter. See Texas Estates Code 22.019 - Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
- Minor: means a person younger than 18 years of age who:
(1) has never been married; and
(2) has not had the disabilities of minority removed for general purposes. See Texas Estates Code 22.022 - Person: includes a natural person and a corporation. See Texas Estates Code 22.027
- personal representative: include :
(1) an executor and independent executor;
(2) an administrator, independent administrator, and temporary administrator; and
(3) a successor to an executor or administrator listed in Subdivision (1) or (2). See Texas Estates Code 22.031 - Probate: Proving a will
- Property: means real and personal property. See Texas Government Code 311.005
- Remainderman: One entitled to the remainder of an estate after a particular reserved right or interest, such as a life tenancy, has expired.
- Surety: includes a personal surety and a corporate surety. See Texas Estates Code 22.032
- Testate: To die leaving a will.
- Trustee: A person or institution holding and administering property in trust.
(c) Except as otherwise provided by this subsection, if a trust is created in the decedent’s will or if the decedent’s will devises property to a trustee as described by § 254.001, the person or class of persons entitled to receive property outright from the trust on the decedent’s death and those first eligible to receive the income from the trust, determined as if the trust were to be in existence on the date of the filing of the application for an order continuing independent administration, shall, for the purposes of this section, be considered to be the distributee or distributees on behalf of the trust, and any other trust or trusts coming into existence on the termination of the trust, and are authorized to apply for an order continuing independent administration on behalf of the trust without the consent or agreement of the trustee or any other beneficiary of the trust, or the trustee or any beneficiary of any other trust which may come into existence on the termination of the trust. If a person considered to be a distributee under this subsection is an incapacitated person, the trustee or cotrustee may apply for the order continuing independent administration or sign the application on the incapacitated person’s behalf if the trustee or cotrustee is not the person proposed to serve as the independent administrator.
(d) If a life estate is created either in the decedent’s will or by law, and if a life tenant is living at the time of the filing of the application for an order continuing independent administration, then the life tenant or life tenants, determined as if the life estate were to commence on the date of the filing of the application for an order continuing independent administration, shall, for the purposes of this section, be considered to be the distributee or distributees on behalf of the entire estate created, and are authorized to apply for an order continuing independent administration on behalf of the estate without the consent or approval of any remainderman.
(e) If a decedent’s will contains a provision that a distributee must survive the decedent by a prescribed period of time in order to take under the decedent’s will, for the purposes of determining who shall be the distributee under this section, it shall be presumed that the distributees living at the time of the filing of the application for an order continuing independent administration of the decedent’s estate survived the decedent for the prescribed period.
(f) In the case of all decedents, for the purposes of determining who shall be the distributees under this section, it shall be presumed that no distributee living at the time the application for an order continuing independent administration of the decedent’s estate is filed shall subsequently disclaim any portion of the distributee’s interest in the decedent’s estate.
(g) If a distributee of a decedent’s estate should die, and if by virtue of the distributee’s death the distributee’s share of the decedent’s estate shall become payable to the distributee’s estate, then the deceased distributee’s personal representative may sign the application for an order continuing independent administration of the decedent’s estate under this section.
(h) If a successor independent administrator is appointed under this section, then, unless the probate court shall waive bond on application for waiver, the successor independent administrator shall be required to enter into bond payable to and to be approved by the judge and the judge’s successors in a sum that is found by the judge to be adequate under all circumstances, or a bond with one surety in an amount that is found by the judge to be adequate under all circumstances, if the surety is an authorized corporate surety.
(i) Absent proof of fraud or collusion on the part of a judge, the judge may not be held civilly liable for the commission of misdeeds or the omission of any required act of any person, firm, or corporation designated as a successor independent administrator under this section. § 351.354 does not apply to an appointment of a successor independent administrator under this section.