Removing an Executor or Administrator

To remove an executor in Travis County, you need a record that shows a statutory ground for removal. A slow or silent executor isn’t necessarily a dishonest one, and the judge won’t remove a fiduciary because the family has run out of patience. The cheapest way to build that record is a written demand for an accounting under Estates Code Section 404.001, made before anyone files a petition.

Demanding an Accounting

Most people who call about removal want an application on file this week. In most of those cases the better first step is a written accounting demand.

Texas Estates Code 404.001: once 15 months have passed since the court clerk first issued letters testamentary or of administration, any person interested in the estate may demand a sworn accounting from the independent executor. If the executor doesn’t comply within 60 days after receiving the demand, the person who made it may bring an action in the probate court to compel it.

Count the 15 months from the date the clerk first issued letters, not from the date of death or the date the will was admitted. Pull the letters from the clerk’s file and confirm the date.

The demand helps you either way. If the administration is just slow, the accounting usually ends the argument. If something is wrong, an ignored demand or a sworn accounting with holes in it becomes the core of the removal case. Failing to make a required accounting is itself a removal ground under Section 404.0035(b)(1), so an application with an unanswered statutory demand attached reads very differently from one that only alleges mismanagement.

How a Removal Runs in Travis County

  1. Use the cause number to identify your judge. Travis County doesn’t assign probate cases at random. Under Local Rule 1.3(a)(3), which tracks Government Code Section 25.2293, the county clerk dockets odd-numbered probate, guardianship and trust cases in Probate Court No. 1, the Honorable Guy Herman, and even-numbered cases in Probate Court No. 2, the Honorable Nicholas Chu. Mental health matters always go to Court No. 2. Both courts sit at 200 W. 8th Street.
  2. Confirm the date letters were issued. Everything after this step counts from that date. Without it you can’t tell whether the 15 months under Section 404.001 have run.
  3. Send the demand in writing. Keep proof of what you sent, to whom, and when, then calendar the 60th day. A request made at a family dinner won’t count as a statutory demand.
  4. Wait out the 60 days. If you file early, you hand the executor an easy answer: the statute gave them time they hadn’t used yet.
  5. File to compel, to remove, or both. A suit to compel the accounting is the narrower remedy, and removal under Chapter 404 is the broader one. What the 60 days produced decides which one you file.
  6. Keep the case moving. Under Local Rule 6.1(b), a case that has been on file more than 12 months, with no trial setting and no filings in the last 180 days, is eligible for dismissal for want of prosecution. Families often take a quiet docket as a sign of progress, when in this court it puts the case on the dismissal track. Local Rule 6.3(b) requires a motion to retain at least 14 days before the dismissal date, which leaves little room if nobody is watching the docket.
  7. Have a successor in mind. Removal leaves a vacancy, and the judge will want it filled. If you show up without a candidate, one contested hearing can turn into two.

Grounds for Removal

The court doesn’t weigh whether the executor is likable or whether someone else would do a better job. It applies the grounds the Legislature wrote into Sections 404.003 and 404.0035 of the Estates Code.

Texas Estates Code 404.003 allows removal without notice when the independent executor can’t be served, or when there are sufficient grounds to believe the executor has misapplied or embezzled estate property or is about to. Section 404.0035(b) allows removal after personal service for failing to make a required accounting, gross misconduct or gross mismanagement, legal incapacity, and a material conflict of interest.

The conflict ground applies when a material conflict of interest leaves the executor unable to properly perform their fiduciary duties, which can include an executor who sits on both sides of a transaction with the estate. Section 404.0035 took effect in 2014 and was amended in 2017 and again in 2023, so check that anything you read about removal reflects the current text.

Removal is rarely the only claim in the case. Where estate money has moved, a breach of fiduciary duty claim usually comes with it. Where the problem is the will itself, you’re looking at a will contest instead.

What Removal Does Not Fix

Removing an executor takes away their authority to act for the estate. Clients are often surprised by how much is left unresolved afterward.

  • It doesn’t return money. A surcharge for losses the executor caused is a separate claim that has to be pleaded and proved on its own.
  • It doesn’t change the will. A will you believe is invalid stays in force until it’s set aside, and Estates Code 256.204 gives two years from the date the will was admitted to contest it.
  • It doesn’t decide who the heirs are. That takes a contested heirship proceeding, which has its own requirements, including the attorney ad litem that Estates Code 202.009 requires the court to appoint for heirs whose names or locations are unknown.
  • It doesn’t free up a distribution while creditor claims are still open. The successor will give you the same answer the last fiduciary did.
  • It doesn’t close the estate faster. A contested removal commonly runs well over a year, and a new fiduciary starts by reconstructing what the old one did.

A note on fit. We don’t handle muniment of title, small estate affidavits, affidavits of heirship, or routine administration.

If the 60 Days Have Passed

Bring the cause number, the date letters were issued, and anything you’ve sent or received in writing. The cause number tells us whether Judge Herman or Judge Chu will hear your application, and the dates tell us whether a 404.001 demand is already available to you.

The first conversation is free and usually short.