My mother recently passed away, and so far the only will we can find lists my Step Father as the Executor. She also added a "No Contest Clause" to her will. However, I do not feel that my Step Dad is mentally COMPETENT to be the Executor. Is there any way to challenge his compentency, or does that fall under "contesting the will?"
Estate Planning Attorney
I'm not admitted to practice in Texas, but in most states, "no contest" clauses are applied very strictly and narrowly. They are intended to dissuade dissappointed beneficiaries/next of kin from challenging the dispositve provisions of the Will. Here, though, you have a legitimate concern whether your step-father has the mental capacity to properly administer the estate. I don't think that challenging his competency will trgger the no-contest prohibition, but you really need to obtain legal representation from an attorney experienced in probate litigation. It is usually difficult to remove a named beneficiary but it sounds like you may have grounds here. An attorney will be able to present your case to the court in a proper fashion and defend your claims against any response by your stepfather's/estates attorney. Do not attempt this on your own. Please accept my sympathies on your loss, and best wishes for a satisfactory resolution of your situation.
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This in terrrorem clause has nothing to do with challenging the competency of the executor.
Get an estates litigation attorney immediately. You may need to bring an action for removal for cause. For removal for cause, please see my article entitled Pennsylvania Probate: Removal of Personal Representative Under PA Estates and Fiduciary Code at the following link: http://www.sjfpc.com/Probate_Removal_Executor_Trustee_PA_Probate_law.html Even though this relates to PA law most states have similar rules.
Hope this helps.
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Estate Planning Attorney
I am sorry for your loss. In Texas, the no contest clause (aka: "in terrorem" clause) pertains to the inheritance rights of a beneficiary under the will (Section 10C of the Texas Probate Code). Interested parties should certainly bring to the Court's attention that a person nominated under a decedent's Will to serve as executor lacks the capacity to serve as such. Under the Texas Probate Code Section 78, the Court will not appoint an executor if the Court finds that the nominated person is an incapacitated person (78a) or if the Court finds the person to be "unsuitable" for some reason (78e). If the nominated executor is not appointed due to lack of capacity, then a successor executor is appointed, either under the terms of the Will, or if none, then as the Court decides. A successor executor or beneficiary under the Will, can file an Application to Probate the Will and further explain to the Court who qualifies and does not qualify to be appointed and why. An experienced probate attorney in the county where your mother died would be able to help you in this journey. I wish you the very best of luck.
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Estate Planning Attorney
It is important to note at the outset that the Texas Probate Code provides procedures for challenging the appointment of an executor based on his qualification to act as such. Texas case law also provides that an otherwise valid "no-contest" clause will be strictly construed. As such, at least one appellate court has held that challenging the qualification of a designated executor does NOT constitute a challenge of the type to invoke a no-contest clause. See Estate of Newbill, 781 S.W.2d 727 (Tex. App.-Amarillo 1989, no writ). That court noted that "[t]o hold otherwise would be inconsistent with the obvious intent of the law to make sure that an applicant is properly qualified to execute the fiduciary relationship necessary in the administration of a decedent's estate." 781 S.W.2d at 729. However, there may be other facts in that case that may be distinguishable from your situation, and the legal authority of that particular case may not extend to your appellate district in Texas.
As such, I recommend that you have a lawyer experienced in estates and trusts law in the county where the probate is pending assess the situation to see if this case would be applicable and to see if you have grounds to contest the appointment. If you are successful, the legal fees you spend to ensure that a qualified executor is appointment MAY be payable from the estate as a whole (rather than from you alone).
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