The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
Choosing the right executor is one of the most important decisions in any estate plan. In Texas, the executor (also called a “personal representative”) is the person responsible for carrying out the terms of your will, paying your debts, and distributing your assets after your death. But not everyone is eligible to serve, and not everyone is a good fit for the job.
Whether you’re writing a Will or dealing with a loved one’s estate, in this week’s column, I will explain who can legally serve as an executor in Texas, what the role involves, and how to avoid common pitfalls.
First, let's address what an Executor is. An executor is a person or entity named in a Will to manage the estate of someone who has died. Their responsibilities include:
Filing the Will with the probate court
Notifying heirs and creditors
Collecting and valuing assets
Paying valid debts and taxes
Distributing property according to the Will
The executor acts as a fiduciary, meaning they are legally obligated to act in the best interest of the estate and its beneficiaries. In Texas, executors may serve with or without a bond, depending on how the Will is written and the court’s discretion.
Who Can Legally Serve as an Executor in Texas? Under the Texas Estates Code, the following people may serve as executors:
An individual who is at least 18 years old
Of sound mind (not legally incapacitated)
Not a convicted felon (unless pardoned or rights restored)
Not found unsuitable by the court
Texas also allows corporate executors—such as banks or trust companies—to serve, but they must be authorized to act as fiduciaries under Texas law.
Non-residents can serve as executors only if they appoint a resident agent for service of process in Texas. The resident agent must be approved by the probate court judge.
Who Cannot Serve as Executor? According to the Texas Estates Code §304.003, the following people are disqualified from serving:
Minors
People found mentally incapacitated
Felons who have not had their rights restored
Individuals found “unsuitable” by a probate judge
“Unsuitability” is a broad category and may include people with conflicts of interest, a history of dishonesty, or an inability to perform required duties.
How Is an Executor Appointed? If the deceased left a valid Will, the executor named in the Will must apply for probate and ask the court to formally appoint them. Once appointed, they receive “letters testamentary,” which authorize them to act on behalf of the estate.
When you sit down with your estate planning attorney to devise a plan to protect your assets and transfer them to your loved ones, do not forget to put thought into your executor. This person should be comfortable with handling property, finances, and assets. Additionally, they should be available and have the time to transfer these items in accordance with your directions in your Last Will and Testament.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. © www.moakandmoak.com