pjc-family-2024-lib

R EMOVAL OF P ERSONAL R EPRESENTATIVE

PJC 233.1

PJC 233.1

Removal of Personal Representative—Dependent Administration

QUESTION 1 Did PERSONAL REPRESENTATIVE engage in gross misconduct, or mis management in the performance of his duties ? “Gross misconduct” means glaringly obvious or flagrant misconduct. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. The foregoing question should be used when removal of a depen dent executor or dependent administrator is sought under Tex. Est. Code §361.052. For independent personal representatives, see PJC 233.2. The decision to remove the personal representative is within the discretion of the court. Tex. Est. Code § 361.052. However, if there are factual disputes about the basis for removal, the foregoing submission may be appropriate. McLendon v. McLendon , 862 S.W.2d 662, 677 (Tex. App.—Dallas 1992, writ denied), disapproved on other grounds , Texas Commerce Bank v. Grizzle , 96 S.W.3d 240, 250 n.42 (Tex. 2003). Source. Tex. Est. Code §361.052 describes the grounds for removing a personal representative, other than an independent executor or independent administrator, with notice. But see Baker v. Hammett , 789 S.W.2d 682, 683–85 (Tex. App.—Texarkana 1990, no writ) (noting that “[p]ersonal representative is defined as including an inde pendent executor, however, the inclusion of an independent executor does not subject the representative to control of the courts and probate matters with respect to settle ment of estates except as expressly provided by law.”). The definition of “gross mis conduct” is based on Kappus v. Kappus , 284 S.W.3d 831, 836 (Tex. 2009). Rewording. In an appropriate case, the words engage in gross misconduct, or mismanagement in the performance of his duties should be replaced with language reflecting any other ground in Tex. Est. Code § 361.052 that presents a relevant dis puted fact question. The Committee notes that the language regarding removal of an independent personal representative under Tex. Est. Code § 404.0035(b)(3) differs from that for removal of a dependent personal representative under Tex. Est. Code § 361.052(4).

255