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Can non-Texan be Executor?

Dear Mr. Premack: I just read your column from November 30 that an appointed executor cannot live outside the state of Texas if the parents are Texas residents, unless some type of paper is signed. All our children live outside Texas. The daughter we have appointed as executor lives in New Mexico. Is this ʺpaperʺ just a formality that does not actually cause a problem with her serving as executor? We are both 80 years old and both of us have wills drawn up by a lawyer. Thank you – WI

A few readers have asked me for this clarification. Texas law allows you, in your Will, to nominate anyone as your executor. However, after you die and the Will is offered for probate, the law requires that nominee to prove to the court that he/she is not “disqualified” from being appointed as executor.

Probate Code section 78 says that there are 5 reasons a nominee may be disqualified:

  1. If the nominee is incapacitated;

  2. If the nominee is a convicted felon;

  3. If the nominee is a corporation which is not authorized to act as a fiduciary;

  4. If the nominee is found by the court to be unsuitable;

  5. If the nominee resides outside of Texas and has not appointed a resident agent to accept service of process in any legal proceeding related to the estate, and filed that appointment with the court.

Thus, your daughter from New Mexico does not need to take any action at this time. But after you die, she’ll need to hire an experienced elder law / probate attorney in San Antonio. That attorney will need to prepare for her the “paper” – that is, an appointment of a resident agent to accept service. (In this context, service means delivery of official court documents related to the probate.) The appointment paper is just one of many formalities that need to be completed when a courtroom probate is started.

Dear Mr. Premack: If a man inherits 100 acres of land and he and his wife decide to build a house on it and live there (using joint funds), is there any amount of time or activities which would change the characterization of that property from the husband’s separate property to community property? – NGY

When property is inherited, it is classified as the separate property of that heir. However, even if you inherit land – like the 100 acres you mention – there are ways that a spouse can obtain a partial interest in the land. For instance:

  1. If community efforts are used to improve the land, the value of the improvements is community property. For instance, if your wife spends 100 hours landscaping the property, and the landscaping is valued at $10,000, then that increase in value is community property owned ½ by her.

  2. If community funds are used to improve the land, your wife has a legal right to reimbursement for her ½ of the contribution if you get divorced or upon your death. The house is your separate property, but it is subject to her right to make a claim for reimbursement of her ½ of the joint funds used to build it.

  3. Even if your wife does not acquire any other interest, she immediately acquires legal homestead occupancy rights. If you die and leave the separate 100 acres to your children, your wife has the right to continue to live in the house despite the fact that she does not own the house.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, December 12, 2014


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