pjc-family-2024-lib

PJC 233.2

R EMOVAL OF P ERSONAL R EPRESENTATIVE

PJC 233.2

Removal of Personal Representative—Independent Administration

QUESTION 1 Did PERSONAL REPRESENTATIVE engage in gross misconduct or gross mismanagement in the performance of his duties ? “Gross misconduct” means glaringly obvious or flagrant misconduct. “Gross mismanagement” means glaringly obvious or flagrant mismanage ment. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. The foregoing question should be used when removal of an inde pendent executor or independent administrator is sought under Tex. Est. Code §404.0035. For executors or administrators in dependent administrations, see PJC 233.1. The decision to remove the personal representative is within the discretion of the court. Tex. Est. Code § 404.0035. 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 § 404.0035 describes the grounds for removing an inde pendent personal representative with notice. The definitions of “gross misconduct” and “gross mismanagement” are based on Kappus v. Kappus , 284 S.W.3d 831, 836 (Tex. 2009). See also Geeslin v. McElhenney , 788 S.W.2d 683, 685 (Tex. App.—Aus tin 1990, no writ) (noting “the statutory criteria (‘gross mismanagement’ and ‘gross misconduct’) are necessarily elastic. They must be sufficiently narrow to exclude ordi nary negligence . . . [but] they include at minimum: (1) any willful omission to perform a legal duty; (2) any intentional commission of a wrongful act; and (3) any breach of a fiduciary duty that results in actual harm to a beneficiary’s interest.”). Rewording. In an appropriate case, the words engage in gross misconduct or gross mismanagement in the performance of his duties should be replaced with lan guage reflecting any other ground in Tex. Est. Code § 404.0035 that presents a rele vant disputed fact question. The Committee notes that the language regarding removal of an independent personal representative under Tex. Est. Code

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