When having a will drafted, one of the important things to consider is naming an executor. This is the person designated to bear the task of carrying out the terms of the will. The executor of an estate is a fiduciary. They owe fiduciary duties to the beneficiaries when performing their responsibilities during the probate of the will.
Whatever other qualifications you consider for the executor of your estate, keep in mind that an executor of an estate must be at least 18 years old and of sound mind.
People that will be disqualified to serve as executor
A person will be deemed unqualified to serve as an executor if the person is incapacitated or a felon who has been convicted of a felony under any state or federal law, unless they have been pardoned or had all civil rights restored. Additionally, a person will be disqualified if they are a nonresident of Texas who is not a natural person—meaning a living human being—or corporation and have not appointed a resident agent to accept service of process or had that appointment filed with the court. A corporation is also disqualified if they are not authorized to act as a fiduciary in Texas. Lastly, the court will disqualify any people the court finds unsuitable.
The process of getting appointed as executor
The will must be offered for and admitted to the court for probate. The judge will then determine if the will is valid. If the will is admitted to probate, the executor will then be appointed. They are then issued Letters Testamentary, which authorize the executor to act on behalf of the estate, giving the executor the authority to transfer assets and access accounts.
What are the Duties of an executor?
(1) present the will;
(2) locate and notify all beneficiaries of the will;
(3) give notice to all creditors of the decedent and pay any valid debts owed by decedent;
(4) identify all assets of the decedent and take steps to maintain and protect the assets; and
(5) distribute the assets according to the terms of the will.
How do I remove an executor?
If you are a beneficiary worried about how the executor of an estate is carrying out their duties, removal of that executor is possible. An executor may be removed after they are appointed for several reasons, particularly if they are not fulfilling their duties. For example, an executor may be removed if they fail to make an account or if they have been guilty of gross misconduct or gross mismanagement in their duties. If there is sufficient evidence to support a belief that an executor has or is about to misapply, embezzle, or remove from the state property entrusted to the executor’s care.
Additionally, if an executor subsequently becomes incapacitated, sentenced to the penitentiary, or becomes incapable of properly performing their duties, they may be removed. If you need help with the removal of an executor, it is best to seek the legal advice of a licensed attorney.
How do I choose as an executor?
(1) Name someone close to you, someone you think will do the right thing and act according to your wishes.
(2) Name someone who will act in good faith on behalf of all the beneficiaries listed in the will.
(3) Name someone that lives in the state of Texas, if possible. This makes it easier to handle day-to-day matters without having to appoint someone within the state to accept service.
(4) Avoid choosing a corporation to serve as your executor, if possible. This way you avoid having them disqualified if they are not authorized to act as a fiduciary.
If you have any questions about naming an executor of your will or want more information, call us today at 210-368-9708 or contact us to make an appointment. Here at Tessmer Law Firm, PLLC, we want to provide you the best representation at a reasonable price.
Can I name an executor without a will in Texas?
Yes—but in Texas, if someone dies without a will, you generally would not be called an executor. The court appoints an administrator to handle the estate.
If there is no will
When a person dies intestate (without a valid will), the probate court determines who the legal heirs are and appoints an administrator to administer the estate. Texas law provides an order of preference for who may be appointed, and the court must determine that the person is qualified to serve.
If all of the heirs agree, they can generally designate a qualified person to serve as an independent administrator. Texas Estates Code § 401.003 specifically allows all distributees of an intestate estate to agree on and designate a qualified person to serve as independent administrator.
So, for example, if a parent dies without a will and leaves three adult children, the children may be able to agree that one of them should serve as the administrator. The court still has to formally appoint that person.
Executor vs. administrator
| Situation | Person handling the estate |
| Valid will names someone | Executor |
| No will | Administrator |
| Will exists but named executor cannot serve | Court may appoint an administrator |
| No will + heirs agree on independent administration | Court may appoint the person designated by the heirs |
An administrator has significant fiduciary responsibilities. They may have to locate and protect estate assets, address debts and creditor claims, file required documents and distribute property according to Texas intestacy law and the court’s determination of the heirs.