How long does the executor have to enforce the will?

Asked over 3 years ago - San Antonio, TX

My father passed away over a year ago. It was in his will for the home to be immediately sold and the money to be distributed amongst the siblings. It also stated if the executor could not perform the functions another sibling would be named executor.

Its been over a year and the executor is complicating everything and telling everyone different things. She stated she does not know what to do, but refuses to step down and let someone else handle it. What can be done? Everyone is tired of waiting.

Attorney answers (4)

  1. Roger Sinclair Jones

    Contributor Level 6

    Answered . First, in Texas probate most of the time periods start running when the executor qualifies. This is the date the executor filed her oath, and, if she had to be bonded, when the Court approved her bond. So, the date when your dad passed away, the date the Will was filed, even the date the case went to Court aren’t really relevant to your inquiry. The date the executor qualified is the starting date. If your dad’s estate is in a county which has the probate records on-line, search the on-line records to see when the Oath was filed. The Letters Testamentary for the executor should say when she qualified. The date the executor qualifies is the date the probate administration starts.
    You don’t say whether the executor is an "independent" executor or merely an executor and there is a huge difference in Texas. Most Texas Wills provide for an "independent" executor. An independent executor administers the estate free of most supervision by a Court whereas an executor is "dependent" and almost every action take must be pre-approved by the Court.
    Assuming this is an independent executor case, your options are limited. Texas Probate Code Section 149A says an independent executor can’t be forced by the Court to give an accounting until 15 months after the independent executor qualified. (This is why I emphasized learning when the independent executor qualified.) Texas Probate Code Section 149B says an independent executor can’t be forced by the Court to distribute an estate for two years from when the independent executor qualified. So, even though over a year has passed since your father passed away, you need to look at when the executor qualified to determine when you can file with the Court to force an accounting and a distribution.
    But, if an executor lets a house sit and doesn’t put it on the market to sell then the executor might be breaching a fiduciary duty though the facts of the case are very, very important in determining whether this would be a breach of fiduciary duty.
    I suggest a family meeting and perhaps include the executor’s attorney and ask the hard questions to the executor and the executor’s attorney. Please note I said "executor’s attorney". The attorney DOES NOT represent "the Estate" and the attorney DOES NOT represent the people who receive the Estate per the Will (legal phrase is "devisees"). The attorney represents the executor only. Also, the fees charged by the executor’s attorney are being paid out of the estate so you are indirectly paying for the executor’s attorney. But, since most attorneys don’t want the devisees complaining to the executor or to the Court, perhaps a family meeting including the attorney will expedite matters. If you hire an attorney personally, you are paying your lawyer and, through your part of the estate, paying the executor’s lawyer. But, if the executor isn’t responding to the complaints, hiring a local probate attorney might move the estate along.

    The response provided is general information based upon the limited information provided in the inquiry. Roger S.... more
  2. James Brian Thomas

    Contributor Level 14

    Answered . As Mr. Haber indicates, some estates can take longer than others. A decedent's wishes might be clear, but there may very well be other factors that govern how quickly they can be carried out. Not only will larger estates generally require more work, but those estates with a number of creditors or claims can often require additional time. Any or all of these factors might be present in your case. Texas law provides beneficiaries with the right to demand an accounting of the executor's actions, and based upon your facts that time may be approaching. Moreover, the representative of an estate could be removed if shown to be neglecting their appointed job to the detriment of the estate.

    If you're tired of waiting, be proactive and consider retaining your own counsel to review the situation with an experienced eye. You might be inviting even more expense and delays by adding another attorney to the mix, but it might just be enough to move the matter off of center and get things headed down the correct track. Best of luck.

    This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make... more
  3. Jeffrey Albert Yates

    Contributor Level 10

    Answered . I agree with Mr. Thomas and Mr. Jones. I would advise against contacting the executor directly as she is almost certainly represented by an attorney. Until and unless the attorney gives you permission to contact the executor directly (which may well happen), all communication needs to go through the attorney.

    The information contained in this response is provided as a service and does not constitute legal advice. As... more
  4. Michael S. Haber

    Pro

    Contributor Level 20

    Answered . There is no set time for an executor to carry out the terms of the will. Indeed, some estates stay open for a long period of time, but the longer the period in which the estate is open is usually indicative of complications or a particularly large estate.

    I assume there is an attorney for the estate. While he or she does not actually represent the beneficiaries, even if the executor does not know what to do, the attorney should know.

    It is possible, of course, to petition the court to replace the personal representative of the estate. My suggestion is that you first write a letter to the executor and send a copy to the attorney for the estate. The letter should set a deadline and should indicate that in the absence of appropriate answers (and concomitant actual activity) by that deadline, you will petition to remove the executor. That should probably help.

    If not, the beneficiaries are free to hire their own counsel.


    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are... more

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