Probate Court Cannot Order Executor to Act

Our Texas probate laws provide for independent administrations. The term “independent administration” means a probate that has very little court supervision or involvement. The “independent executor” is left to themselves to know and follow the law.

This is why many executors prefer to serve as dependent administrators. They prefer having the court make the difficult decisions. They also prefer having the ability to ask the probate court to authorize them to act. This can go a long way in avoiding probate disputes, as it is the probate judge that is making the decisions.

But if you do an independent administration, can you still ask the probate judge to authorize you to act in some manner or are you really on your own? The court addresses this topic in Marshall v. v. Hobert’s Estate, 315 S.W.2d 604 (Tex. App.–Eastland 1958)

Facts & Procedural History

This case involves a father who had a will that left his estate to his three children. The will named one of the children as the executor–the independent executor.

The will was admitted to probate and the decedent’s son was appointed as the executor. That part of the case was not at issue.

The decedent’s daughter signed an oil and gas lease for the property she inherited from her father’s estate. The next day, the independent executor signed an oil and gas lease for the property belonging to the estate. This probate dispute involves these leases.

The independent executor asked the probate court to authorize him to enter into a lease with the party it had already entered into a lease with. Thus, the independent executor was really asking the probate court to ratify the prior lease. The probate court entered an order authorizing the independent executor to enter into the lease.

The dispute in this case is about who has the authority to enter into a lease when the will does not authorize the independent executor to do so. Can the court authorize an independent executor to enter into a lease?

Independent vs. Dependent Probates

An independent administration is just what it sounds like. It is a probate administration that is essentially free of the court’s supervision. Independent executors use their own discretion and decision-making while distributing assets, paying creditors, etc. 

Compare this to dependent administrations. With dependent administrations, the executor has to obtain court approval before taking most actions.

The Rules for Administering a Probate in Texas

The Texas Estates Code sets out a number of detailed rules for dependent administrations. These rules are found in the 300’s of the Texas Estates Code.

One cannot help but compare these detailed rules to those for the independent administrations. The Code only includes a handful of rules for independent administrations. They are found in Sections 400-405 of the Code.

The absence of rules stems from the general rule that applies to independent administrations: that the independent executor is authorized to take most actions without court supervision.

But what exactly is court supervision? Is it synonymous with court authorization? Put another way, can the court authorize an independent administrator to take certain routine actions?

Independent Really Means Independent

That question brings us back to this case. In Marshall, the court entered an order authorizing the independent executor to enter into a lease. If you review the Estates Code, the rules for dependent administrations say that the court can authorize the executor to do this. There is no similar rule for independent administrations.

The appellate court in this case concluded that the probate court erred by authorizing the independent executor. The appellate court notes that the independent executor is by definition to be free of the court’s authority. Thus, the dependent administration lease rule which says that the court is to authorize any lease does not apply to independent administrations.

The Takeaway

The Texas probate rules can be tricky. There is some comfort knowing that you can ask the probate court for authority to act. This is a central feature of dependent administrations. As this case shows, it is not something that applies in independent administrations. So if you are an executor or planning on becoming an executor for a probate in Texas, you should carefully consider whether you want to probate the will as an independent or dependent administration.