How Do I Resign as Executor in Texas?
Full Question:
Answer:
An appointment of an executor isn't effective until the court issues letters testamentary. The testator may appoint any executor she chooses to administer the will and her appointment of you as executor is valid. However, you will have to travel to probate court in California to probate the will and might be required to remain for a period of time in order to settle the affairs of the estate. If you feel like this might inhibit your ability to effectively serve as executor or impose too substantial a burden, you may petition the court to resign as executor and the court will appoint a new executor in your place.
The executor can file a resignation with the court and the new executor would petition for appointment as the successor.
Please see the following TX statutes:
§ 178 PROB. CODE When Letters Testamentary or of Administration Shall Be Granted [EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1, 2014.]
(a) Letters Testamentary. When a will has been probated, the court shall, within twenty days thereafter, grant letters testamentary, if permitted by law, to the executor or executors appointed by such will, if any there be, or to such of them as are not disqualified, and are willing to accept the trust and qualify according to law.
(b) Letters of Administration. When a person shall die intestate, or where no executor is named in a will, or where the executor is dead or shall fail to accept and qualify within twenty days after the probate of the will, or shall fail for a period of thirty days after the death of the testator to present the will for probate and the court finds there was no good cause for not presenting the will for probate during that period, then administration of the estate of such intestate, or administration with the will annexed of the estate of such testator, shall be granted, should administration appear to be necessary. No administration of any estate shall be granted unless there exists a necessity therefor, such necessity to be determined by the court hearing the application. Such necessity shall be deemed to exist if two or more debts exist against the estate, or if or when it is desired to have the county court partition the estate among the distributees, or if the administration is necessary to receive or recover funds or other property due the estate, but mention of these three instances of necessity for administration shall not prevent the court from finding other instances of necessity upon proof before it.
(c) Failure to Issue Letters Within Prescribed Time. Failure of a court to issue letters testamentary within the twenty day period prescribed by this Section shall not affect the validity of any letters testamentary which are issued subsequent to such period, in accordance with law.
§ 220 PROB. CODE Appointment of Successor Representative [EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1, 2014.]
(a) Because of Death, Resignation or Removal. When a person duly appointed a personal representative fails to qualify, or, after qualifying, dies, resigns, or is removed, the court may, upon application appoint a successor if there be necessity therefor, and such appointment may be made prior to the filing of, or action upon, a final accounting. In case of death, the legal representatives of the deceased person shall account for, pay, and deliver to the person or persons legally entitled to receive the same, all the property of every kind belonging to the estate entrusted to his care, at such time and in such manner as the court shall order. Upon the finding that a necessity for the immediate appointment of a successor representative exists, the court may appoint such successor without citation or notice.
(b) Because of Existence of Prior Right. Where letters have been granted to one, and another whose right thereto is prior and who has not waived such right and is qualified, applies for letters, the letters previously granted shall be revoked and other letters shall be granted to the applicant.
(c) When Named Executor Becomes an Adult. If one named in a will as executor is not an adult when the will is probated and letters in any capacity have been granted to another, such nominated executor, upon proof that he has become an adult and is not otherwise disqualified, shall be entitled to have such former letters revoked and appropriate letters granted to him. And if the will names two or more persons as executor, any one or more of whom are minors when such will is probated, and letters have been issued to such only as are adults, said minor or minors, upon becoming adults, if not otherwise disqualified, shall be permitted to qualify and receive letters.
(d) Upon Return of Sick or Absent Executor. If one named in a will as executor was sick or absent from the State when the testator died, or when the will was proved, and therefore could not present the will for probate within thirty days after the testator's death, or accept and qualify as executor within twenty days after the probate of the will, he may accept and qualify as executor within sixty days after his return or recovery from sickness, upon proof to the court that he was absent or ill; and, if the letters have been issued to others, they shall be revoked.
(e) When Will Is Discovered After Administration Granted. If it is discovered after letters of administration have been issued that the deceased left a lawful will, the letters shall be revoked and proper letters issued to the person or persons entitled thereto.
(f) When Application and Service Necessary. Except when otherwise expressly provided in this Code, letters shall not be revoked and other letters granted except upon application, and after personal service of citation on the person, if living, whose letters are sought to be revoked, that he appear and show cause why such application should not be granted.
(g) Payment or Tender of Money Due During Vacancy. Money or other thing of value falling due to an estate while the office of the personal representative is vacant may be paid, delivered, or tendered to the clerk of the court for credit of the estate, and the debtor, obligor, or payor shall thereby be discharged of the obligation for all purposes to the extent and purpose of such payment or tender. If the clerk accepts such payment or tender, he shall issue a proper receipt therefor.
§ 79 PROB. CODE Waiver of Right to Serve [EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1, 2014.]
The surviving husband or wife, or, if there be none, the heirs or any one of the heirs of the deceased to the exclusion of any person not equally entitled, may, in open court, or by power of attorney duly authenticated and filed with the county clerk of the county where the application is filed, renounce his right to letters testamentary or of administration in favor of another qualified person, and thereupon the court may grant letters to such person.
§ 77 PROB. CODE Order of Persons Qualified to Serve [EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE UNTIL JANUARY 1, 2014.]
Letters testamentary or of administration shall be granted to persons who are qualified to act, in the following order:
(a) To the person named as executor in the will of the deceased.
(b) To the surviving husband or wife.
(c) To the principal devisee or legatee of the testator.
(d) To any devisee or legatee of the testator.
(e) To the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes a person and his descendants who legally adopted the deceased or who have been legally adopted by the deceased.
(f) To a creditor of the deceased.
(g) To any person of good character residing in the county who applies therefor.
(h) To any other person not disqualified under the following Section. When applicants are equally entitled, letters shall be granted to the applicant who, in the judgment of the court, is most likely to administer the estate advantageously, or they may be granted to any two or more of such applicants.
