In  In re Estate of Allen, a trial court appointed a successor independent administrator, the decedent’s son, and the decedent’s wife appealed the decision. No. 08-21-00184-CV, 2022 Tex. App. LEXIS 8841 (Tex. App.—El Paso December 2, 2022, no pet. history). The court first discussed the distinction between a dependent and independent administration:

The primary distinction between dependent and independent administrations is the level of judicial supervision over the exercise of the executor’s power. In a dependent administration, an executor or other personal representative can perform only a few transactions without seeking a court’s permission. In contrast, in an independent administration, the executor is “free from . . . the expense and control of judicial supervision except where the . . . Code specifically and explicitly provides otherwise.” As our sister court in Waco has recognized, the “independent administration of estates and the testator’s right to select an independent executor of his or her choice are foundations of Texas law.” So if an independent executor named in a will is willing to serve, the court has no discretionary power to refuse to issue letters to the named executor unless he is a minor, an incompetent, or otherwise disqualified under the Code.

Id. The court then determined the relevant statute in determining a successor independent administrator:

In the trial court, Kenneth and Corey relied on Chapter 361 of the Estates Code in their Application seeking to allow Kenneth to step down and to name Corey as the successor independent executor… We conclude, however, that Chapter 361 does not govern the appointment of a successor independent executor or administrator not named in a will.

Under section 361.002 of the Code, a court may accept the resignation of a “personal representative” of an estate, and may immediately appoint a successor representative when “necessity exists” without notice or a hearing. To be sure, section 22.031(a) of the Code defines a “personal representative” to include an “independent executor” or “independent administrator” of an estate. But section 22.031(b) provides a significant exception to the general rule that an independent executor is to be treated like a “personal representative,” stating that “[t]he inclusion of an independent executor in Subsection (a) may not be construed to subject an independent executor to the control of the courts in probate matters with respect to settlement of estates, except as expressly provided by law.” And in turn, a trial court exerts “control” over an independent executor when the court either removes him, or when it appoints a successor who has not been named in the testator’s will. Thus, a trial court may neither remove an independent executor or appoint his successor absent express statutory authority allowing it to do so.

As Lisa points out, section 404.005 of the Code, which is found in Subtitle I of the Code governs “Independent Administration,” and provides one specific instance in which a trial court may appoint a successor independent administrator not named in a will. Section 404.005(a) provides that if the will of a person names an independent executor who for any reason is unwilling or unable to serve, and if each successor executor named in the will is also either unable or unwilling to serve, “all of the distributees of the decedent” may file an “application for an order continuing [the] independent administration [and] may apply to the probate court for the appointment of a qualified person, firm, or corporation to serve as successor independent administrator.” And if the probate court finds that the “continued administration of the estate is necessary,” this provision allows the court to “enter an order continuing independent administration and appointing the person, firm, or corporation designated in the application as successor independent administrator, unless the probate court finds that it would not be in the best interest of the estate to do so.”

Given the language used in this provision—requiring “all distributees” to join in the application—we conclude that the Legislature intended to only give a probate court the limited authority to appoint a successor independent executor not named in a will when “all” of the distributees agreed; in other words, it did not intend to allow a single distributee to unilaterally apply for the continuation of an independent administration or to appoint a successor administrator. And in turn, if the distributees do not all agree on the continuation of the independent administration or the appointment of a successor independent administrator, the estate will then be converted to a dependent administration, which will be subject to judicial control, and any successor appointed by the court will be treated as a dependent executor. We therefore conclude that Lisa is correct that all “distributees of the decedent” needed to agree on Corey’s appointment as the successor independent administrator to allow the independent administration to continue.

Id. The court then determined that Lisa, the decedent’s wife, was a distribute of the estate based on her life estate in the family homestead. The court concluded:

We therefore conclude that Lisa was in fact a “distributee” under section 404.005(d) through her homestead rights, and that, consequently, her agreement was required under section 404.005(a) of the Code before the trial court could appoint Corey as the successor independent administrator of Rickey’s estate. Accordingly, the trial court erred by accepting Kenneth’s resignation and appointing Corey as his successor without obtaining Lisa’s agreement.

Id. The court also mentioned that upon remand, the decedent’s wife may have priority as the successor administrator under statute.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law