If a person has been convicted of a felony, either in state court or federal court, that person is not qualified to serve as an Executor (unless pardoned or their rights have been restored by the criminal courts). This has been Texas law for many decades.
One of the bills passed by the Texas Legislature in the 88th regular session is SB1373, which amends section 304.003 of the Texas Estates Code. The new law allows a person who has been convicted of a felony to serve as an Executor if a) the testator (the person who made the Will) nominated the felon as Executor in the testator’s Will, b) the felon is not disqualified in any other way, for instance by being incapacitated, and c) the probate court approves the appointment.
This change takes effect on September 1, 2023 and will apply to Wills admitted to probate on or after that date.
This bill raises some potential concerns
The purpose of SB1373 is to respect the testator's wishes and to give more flexibility to people who want to appoint their loved ones as Executors, regardless of their criminal history. However, this bill also raises some potential concerns about the trustworthiness and competence of a felon as an Executor. An Executor has many duties and responsibilities, such as collecting and managing the assets of the estate, paying debts and taxes, and distributing the property to the beneficiaries. A felon may have difficulty performing these tasks, especially if the person has a history of fraud, theft, or violence.
If you have a family member who was convicted of a felony but served their sentence and has since been an upstanding citizen who has earned your trust and confidence, you can now nominate that person in your Will to be your Executor. However, if you die before the effective date of the new law and your Will is offered for probate before the effective date of the new law (9/1/23) the court will still be unable to appoint the felon. The appointment of a felon as Executor will only work if your Will is offered for probate after 9/1/23.
You should also make sure your Will clearly states your intention to appoint a felon as your Executor and that you have discussed this matter with your family and beneficiaries. By doing so, you can avoid potential disputes and complications that may arise after your death.
If you are considering appointing a felon as your Executor, you should consult with me for advice on the pros and cons of this decision.
Posted on 5/26/2023