January 29, 2021
Many people want to be in charge of their loved one’s Estate because it comes with a lot of power and authority, and they believe they are the best ones to carry out their loved one’s wishes. While that may be the case, the State of Texas has some reservations who qualifies as the best choice for the Executor or Administrator.
Section 304.003 of the Texas Estates Code states that a person may not serve as an Executor or Administrator who is:
(2) a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored;
(3) a nonresident of this state who:
(A) is a natural person or corporation; and
(B) has not:
(i) appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or
(ii) had that appointment filed with the court;
(4) a corporation not authorized to act as a fiduciary in this state; or
(5) a person whom the court finds unsuitable.
The point that disqualifies the most people is number (2) a felon may not serve. Whether the crime was committed two weeks ago or five years ago doesn’t really matter. That person is still disqualified. It’s important to tell your attorney if you are a convicted felon because you could spend thousands of dollars on the Application to be appointed, only to be denied because of the conviction.
This is a good reason to always have an alternate named Executor in your Will, in case your first Executor is disqualified.
Second, there is an order of preference the Texas Estate Code has in who may serve as the Executor.
(a) The court shall grant letters testamentary or of administration to persons qualified to act, in the following order:
(1) the person named as executor in the decedent’s will;
(2) the decedent’s surviving spouse;
(3) the principal devisee of the decedent;
(4) any devisee of the decedent;
(5) the next of kin of the decedent;
(6) a creditor of the decedent;
(7) any person of good character residing in the county who applies for the letters;
(8) any other person who is not disqualified under Section 304.003; and
(9) any appointed public probate administrator.
Having a Last Will and Testament allows you to designate the person you wish to have as your Executor. Your wishes in your Will bypass this list and place the person you have listed in your Will at the top of the list for the Court to appoint.