Tim is independent executor of his Uncle Jim’s estate. Suzi and Janie are the sole heirs of this estate and are upset that Tim has kept the estate open for more than three years without distributing the property of the estate to them. They suspect that Tim is doing this to maintain control and ultimately to profit by the sale of certain real estate their father owned at death. What can they do to remedy the situation?
The Texas Estates Code (TEC) §404.001(a) provides that any interested person may request an accounting of the independent executor fifteen months after Letters Testamentary giving that independent executor authority have been issued. Suzi and Janie can follow this course of action by making such a request. They should make this request in writing and follow the statute in requesting Tim submit an accounting in a sworn writing which would include: (1) the property that had come into his possession; (2) the disposition of this property; (3) the debts that had been paid; (4) the debts and expenses still owed by the estate; (5) the property still remaining in the executor’s possession; (6) other facts for a full understanding of the exact condition of the estate; and (7) facts that show why the estate should not be closed and the property distributed to the heirs.
If Tim fails to submit the requested accounting TEC §404.001(b) provides that Suzi and Janie can petition the court to require Tim to make an accounting.
Since it has been longer than two years since the estate was opened, Suzi and Janie can bypass requesting an accounting of Tim, if they so choose, and go directly to the court with an application to order Tim to make an accounting and to immediately distribute the property to them as heirs. TEC §405.001(a).
This demand is a powerful tool because, after the court receives Tim’s accounting and notice of a hearing for him to appear, the court must order distribution of the property to Suzi and Janie, unless the court finds a reason for continuation of administration of the estate. Tim would have to provide compelling reason for that continuation.
Even if the court finds reason for continuation of the administration the court must order distribution of any portion of the property that is not subject to administration. TEC §405.001(b).
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.