The Executor is Stealing from the Estate: What Now?

Texas law gives executors significant authority over a deceased person’s property. Once appointed by the probate court, an executor may gain access to bank accounts, investment accounts, real estate, personal property, business interests, and other estate assets. In many Texas estates, particularly those administered independently, the executor may exercise these powers with little day-to-day court supervision. Most executors faithfully carry out their duties and honor the trust placed in them. But what happens when an executor is stealing from the estate? An executor who abuses that position of trust may misuse estate funds, engage in self-dealing transactions, conceal assets, make unauthorized transfers, or outright take estate property for their own benefit.

When an executor abuses their position of trust, beneficiaries are not powerless. Texas law provides a variety of remedies designed to protect estate assets, uncover misconduct, remove dishonest fiduciaries, and recover property that has been wrongfully taken. Depending on the circumstances, beneficiaries may be able to demand a formal accounting, require the executor to post bond, obtain injunctive relief, seek the executor’s removal, recover estate property through court proceedings, and pursue claims for damages. This article discusses the warning signs of executor theft and the legal options available to beneficiaries who believe an executor is stealing from an estate.

Oppose the Appointment of the Executor

An executor’s theft of estate property is almost universally accompanied by an abuse of the powers granted to the executor by the probate court. The executor uses these powers to obtain exclusive access, possession, and control of estate property, after which time they can then transfer, misuse, or convert that property for their own use. In many types of estate administration, the executor may carry out these actions independently and without oversight from the probate court. An executor does not have to account for estate property until at least fifteen months have passed from the date they qualified as executor. By the time the beneficiaries or heirs of an estate learn of the executor’s theft, therefore, it may be too late to recover what has been stolen.

One of the best ways to protect estate assets from theft by an unscrupulous executor is to prevent them from being appointed as executor in the first place. Many executors who steal estate assets have a prior history of theft, fraud, or other questionable conduct. If the past behavior of a would-be executor suggests that they will use their powers to misappropriate estate assets, you can oppose their appointment as executor in probate court.

Section 301.101 of the Texas Estates Code provides a mechanism to oppose the appointment of an individual who has applied to become the executor of an estate. To do so, an heir, beneficiary, or other interested person in the estate must file their opposition in writing with the probate court outlining the reasons why the applicant should not be appointed as the executor. The window to file the opposition is small: the opposition must be filed after the person seeking to be the executor files his application with the court, but before the court signs the order appointing them as the executor of the estate. In many cases, the period between the filing of an application and the hearing on appointment may be relatively short – sometimes only a matter of days or weeks – and so it is imperative that a written opposition be filed as soon as possible to prevent a dishonest individual from becoming an executor.

A person opposing the appointment of an executor will usually cite Section 304.003 of the Texas Estates Code, which provides for the disqualification of persons from serving as executor  of an estate. The list of individuals disqualified from serving as an estate executor includes incapacitated persons, nonresidents of Texas who do not appoint a resident agent for service of process, and anyone deemed unsuitable by the court.

Until recently, the Estates Code prohibited felons from serving as an executor of an estate unless they had received a pardon or otherwise had their civil rights restored. However, Section 304.003 was amended in 2023 to allow felons to serve as executor in instances where they are named as executor in a decedent’s will and the probate court approves of them serving in that role. So, whereas in the past a would-be executor with a felony conviction for theft, fraud, or embezzlement would have been automatically prevented from serving as executor, this is no longer the case. Even with the amendment, the likelihood of a court allowing an individual with a history of financial crimes to serve as executor is extraordinarily low, and so the person opposing their appointment would be well-advised to bring any criminal convictions of the applicant to the court’s attention and attach copies of any guilty pleas, verdicts, judgments, or sentencing documents to their written opposition.

Gather Evidence That the Executor is Stealing

What proof do you have that an executor is stealing from an estate? This is the first question I ask prospective clients in cases where they believe that an executor is actively draining estate assets. Some answers I’ve heard in response to this question are:

“The executor is unemployed and is broke as a joke. They just bought a new car, and there’s no way they could afford that on their own. They must be stealing money from the estate.”

“The executor was appointed over a year ago and I still haven’t heard anything from them about when they’re going to distribute the money. I think the executor probably already spent that money and that’s why she’s dragging her feet.”

“Before my father died, he told me that he had over $1 million in his bank accounts. The inventory that the executor filed says that the accounts only had $85,000 at the time of dad’s death. The executor must have stolen the rest.”

Unfortunately, none of these three scenarios – in and of themselves – constitute evidence of estate theft by an executor. More concrete proof – such as financial records, bank statements, copies of checks, communications, invoices, and receipts – will be needed to convince the probate court of the executor’s malfeasance and to hold the executor accountable for their actions.

A partial list of evidence commonly used to substantiate allegations of executor misconduct include:

• Bank Statements & Financial Records: Identify unusual withdrawals, unexplained transfers, or payments for personal expenses using estate funds.
• Receipts, Invoices & Financial Documentation: Compare expenses with known estate obligations to uncover improper spending.
• Emails, Text Messages & Written Communications: These may reveal an executor refusing transparency, concealing assets, or acknowledging improper activity.
• Real Property Records & Title Searches: Look for attempts to sell estate property, transfer ownership, or record deeds without approval.
• Inventory & Appraisement Documents: Check for missing assets, undervalued property, or inconsistencies with known estate holdings.
• Witness Statements: Family members, advisors, or creditors who observed concerning conduct may help corroborate your concerns.

Gathering the necessary evidence is a bit of a Catch-22: how do you gather the documents and information necessary to uncover theft by an executor if the executor is the only person with access to these documents and information? Fortunately, Texas law provides beneficiaries and heirs of estates with a tool to demand that an executor provide a statutory accounting of an estate’s finances and administration.

Demand a Formal Accounting of Estate Assets

If a beneficiary suspects that an executor is stealing from an estate, they should submit a written demand for a statutory accounting. Beneficiaries have the right to demand an accounting from an independent executor, which is a detailed report of the estate’s financial activities. This can help identify any discrepancies or unauthorized transactions.

In a dependent administration overseen by the probate court, executors are required to file an account of estate assets, debts, income, and expenditures on an annual basis. Section 359.001 of the Texas Estates Code requires that the annual account be filed with the probate court within 60 days after the one-year anniversary of the date upon which the executor qualified in that role, and on that same date for each year thereafter until the administration of the estate is completed. In a dependent administration, the court reviews and approves these annual accounts, giving the beneficiaries and heirs of an estate an additional safeguard against theft by an estate’s executor. Moreover, any actions of an executor – such as the sale of estate property or distribution of estate assets – must be reviewed and approved by the probate court. Furthermore, because dependent administrations require that the executor post a bond to protect the estate against theft, negligence, or other transgressions, beneficiaries and heirs are relatively insulated against fiduciary misconduct in these types of administrations.

Theft by an executor occurs far more frequently in estates which are administered independently and without court oversight. In an independent administration – which is by far the most common form of estate administration in Texas – an executor may act freely and without approval by a probate judge. Independent executors, furthermore, are not required to provide an accounting to anyone by default. In cases where an executor is misusing or misappropriating estate property, it is incumbent upon the beneficiaries of an estate to protect their interests before the assets of the estate are gone for good. So how does a beneficiary compel an executor in an independent administration to provide the information and documents necessary to show that they have administered an estate honestly, competently, and fairly?

Texas Estates Code Section 404.001 provides that an interested person, including a beneficiary of an estate, may demand a statutory accounting from an independent executor any time after fifteen months from the date upon which the executor was issued letters testamentary by the probate court.

Upon receipt of the accounting demand, the independent executor has 60 days to furnish the beneficiary with the following information:

• All Estate Property Received: The executor must identify any bank accounts, real estate, personal property, investments, and other assets received by the estate.
• How Estate Property Was Disposed Of: Any sales, transfers, distributions, or losses of estate property must be fully explained.
• Debts of the Decedent or the Estate Paid to Date: The executor must list any creditor’s claims, the amount of the claim, and whether the claim was paid.
• Outstanding Debts, Expenses & Administration Costs: Helps identify unpaid obligations or excessive, improper expenses, to include reimbursement claims by the executor.
• Property Still Under the Executor’s Control: The executor must describe all estate property remaining in their possession, including the location and value of said property.
• Any Facts Needed for Understanding Estate Management: This includes financial decisions, delays, or unusual transactions.
• Reasons the Estate Has Not Been Closed: Executors must explain why extended administration is necessary and state the reasons why the estate cannot yet be closed.

The executor must swear under oath, furthermore, that the accounting is accurate and complete. An executor who attempts to cover up theft of estate assets or other misconduct by providing an incomplete, misleading, or falsified accounting will therefore subject themselves to additional civil and criminal liability. Unreasonable delays, ambiguous descriptions, and the existence of neat, round numbers in an accounting document are indicators that an executor is stealing or otherwise mishandling estate assets.

When demanding an accounting on behalf of our clients, our firm typically incudes a demand that an executor produce bank statements, financial records, and other relevant documents to substantiate the information provided in their accounting. This demand is made pursuant to the executor’s fiduciary duty to provide information and full disclosure of material facts to the beneficiaries of the estate. In most cases, an executor who has not engaged in theft or other wrongdoing will produce these documents freely since they have nothing to hide. Failure to do so, in my experience, may be an indicator that something is, in fact, amiss, and that further investigation might be advisable to protect against any suspected misconduct.

If the executor fails to provide a satisfactory accounting within 60 days, a beneficiary can petition the probate court for an order compelling them to do so, in addition to other remedies – such as removal or a judgment for damages – which may be available under Texas law.

Requiring an Independent Executor to Post Bond

Many beneficiaries are surprised to learn that an independent executor can often serve without posting a bond. In fact, most wills in Texas expressly waive the bond requirement, allowing the executor to take control of estate assets without first providing security to protect the beneficiaries. While this arrangement may be appropriate when the executor is trustworthy and acting in good faith, it can create significant risks when there is evidence of theft, self-dealing, or other financial misconduct.

Fortunately, Texas law provides a mechanism for requiring an independent executor to post a bond even when the will waives that requirement. Section 404.002 of the Texas Estates Code permits an interested person to apply to the probate court for an order requiring the independent executor to furnish a bond. If the court finds that the executor is mismanaging the estate, has misapplied or embezzled estate property, is about to misapply or embezzle estate property, or that the estate is otherwise endangered, the court may require the executor to post a bond in an amount sufficient to protect the estate and its beneficiaries.

A bond serves as a form of financial security. If the executor later steals estate assets, engages in self-dealing, or otherwise breaches their fiduciary duties, the beneficiaries may have a source of recovery beyond the executor’s personal assets. In many cases, the existence of a bond also discourages misconduct because the executor becomes subject to additional scrutiny by the surety company issuing the bond.

Seeking a bond can be particularly useful when there is evidence of questionable conduct but not yet enough evidence to justify immediate removal of the executor. For example, beneficiaries may discover unexplained transactions, missing records, conflicts of interest, or a refusal by the executor to provide information about estate assets. While these circumstances may not yet establish theft, they may be sufficient to demonstrate that the estate is at risk and that additional protections are warranted.

In practice, an application to require a bond is often filed alongside requests for an accounting, production of financial records, or other discovery designed to investigate the executor’s conduct. The bond requirement can help preserve estate assets while the beneficiaries gather evidence that the executor is stealing and determine whether more significant remedies – such as removal of the executor, a surcharge action, or a claim for breach of fiduciary duty – are necessary.

For beneficiaries concerned about executor theft, requiring a bond can be an effective middle ground between doing nothing and seeking immediate removal. It allows the court to impose meaningful financial safeguards while the administration of the estate continues and can provide an important source of protection if the executor’s misconduct ultimately results in financial losses to the estate.

Injunctive Relief to Prevent Further Theft by Executor

When there is credible evidence that an executor is actively stealing estate assets or is preparing to engage in conduct that would result in the loss, transfer, or concealment of estate property, beneficiaries should consider seeking injunctive relief from the probate court. Unlike remedies such as removal of the executor or a lawsuit for damages, injunctive relief is designed to prevent harm before it occurs. Its purpose is to preserve the status quo and protect estate assets while the underlying dispute is investigated and resolved.

In many cases, the greatest challenge facing beneficiaries is not proving that wrongdoing occurred, but preventing additional losses while litigation is pending. An executor who has access to estate bank accounts, investment accounts, real property, or other valuable assets may be capable of transferring, dissipating, or concealing those assets long before a final judgment can be obtained. Injunctive relief provides a mechanism for the court to immediately restrict the executor’s actions and safeguard estate property from further depletion.

In Texas, injunctive relief in a contested probate proceeding typically consists of a temporary restraining order (TRO) followed by a temporary injunction. A TRO may be obtained on an emergency basis to provide immediate protection when irreparable harm is threatened, while a temporary injunction may remain in place during the pendency of the litigation after notice and a hearing. Together, these remedies can be powerful tools for preventing executor theft and preserving estate assets for the benefit of the rightful beneficiaries.

Elements Required for Injunctive Relief

When an executor is stealing, a party can request that the probate court grant injunctive relief to prevent further harm to the estate. To receive injunctive relief in Texas, a party must demonstrate certain key elements to the court:

Immediate and Irreparable Harm.  The petitioner must show that immediate and irreparable injury, loss, or damage will result to them if injunctive relief is not granted. For example, a petitioner may request a temporary restraining order if executor is about to sell estate property for far less than market value, which could result in significant financial loss to the estate.

No Adequate Remedy at Law.  The petitioner must prove that there is no adequate remedy at law, meaning that monetary compensation would not be sufficient to repair the harm.For example, if an executor is attempting to sell or dispose of a family heirloom with great sentimental value, a petitioner may request a temporary restraining order preventing the sale of the item on the basis that the heirloom’s unique character cannot be adequately compensated for by an award of damages against the executor at the conclusion of the case.

Likelihood of Success on the Merits.  The petitioner needs to demonstrate a likelihood of success on the merits of the case when it goes to trial. This doesn’t require proving the case beyond a doubt at this stage but showing enough evidence to suggest that the petitioner has a strong legal claim.For example, the petitioner may provide evidence supporting their claim that the executor breached their fiduciary duty.

Preservation of Status Quo.  The petitioner must show that injunctive relief is necessary to maintain the status quo for the duration of the legal proceedings. For example, a petitioner may present evidence that the executor has misused or misappropriated estate property as proof that the executor must be prevented from further actions which would diminish the value of the estate until the resolution of the case.

Temporary Restraining Orders

If the petitioner satisfies the elements required for injunctive relief, a probate court may issue a temporary restraining order. The purpose of a TRO is to stop the proverbial bleeding of estate assets, and to prevent, without delay, any actions by an executor which could cause irreversible harm to the estate or its beneficiaries before a court hearing can be held.

In Texas, the rules and procedures governing the issuance of a temporary restraining order are provided by Rule 680 of the Texas Rules of Civil Procedure. A TRO is an emergency order issued by a court that temporarily prohibits an individual or entity from taking certain actions until a full hearing can be held to consider whether injunctive relief is warranted. When evidence exists that an executor is engaging in estate theft, a probate court can issue a TRO to prevent an executor from causing further harm to an estate while the contested proceedings are ongoing.

A temporary restraining order can prevent further misappropriation of estate assets by:

• Freezing an estate account to prevent further withdrawals while the court investigates irregular transactions.
• Preventing the executor from selling real property until a hearing can be held.
• Halting the executor’s attempts to distribute estate assets prematurely or without proper valuation.
• Prohibiting the removal of estate property from Texas, which could make court enforcement difficult.
• Ordering the executor not to dispose of or hide financial records or other documents which would harm the beneficiaries’ ability to prove wrongdoing.
• Barring the executor from engaging in any other conduct that harms the estate.

Temporary restraining orders are typically short-term and may remain in effect for up to 14 days unless extended by the court or by agreement of the parties. The party seeking a TRO must demonstrate to the probate court that there is a substantial risk of imminent and irreparable harm to the estate if immediate action is not taken. Because of the urgent nature of this relief, probate courts frequently issue temporary restraining orders on an ex parte basis, meaning the court may hear the request and enter the order without first notifying the executor or giving them an opportunity to appear and respond. This procedure is intended to prevent an executor from using advance notice of the proceedings to transfer, conceal, dissipate, or otherwise misappropriate estate assets before the court can intervene.

A temporary restraining order is intended to stop the immediate “bleeding” of estate assets and prevent further harm while the court considers the parties’ positions. Because a TRO is only an emergency, short-term remedy, it does not provide lasting protection against an executor who is stealing, concealing, or misusing estate property. To safeguard the estate during the pendency of the litigation, a beneficiary should also seek a temporary injunction, which can prohibit the executor from engaging in specified misconduct until the case is finally resolved.

Temporary Injunctions

Unless an extension of a temporary restraining order is granted, the probate court must conduct a hearing within 14 days from the date upon which they entered the TRO to consider evidence as to whether the TRO should be converted into a temporary injunction. A temporary injunction, like a TRO, aims to prevent further harm to the estate by preventing certain actions of the executor. Unlike a TRO, however, a temporary injunction lasts for the entire duration of the legal proceedings relating to the estate.

At the hearing, both the petitioner and the executor will have the opportunity to present their cases. The probate court will consider evidence of the executor’s harmful actions and the need for continued protection of the estate’s assets. The types of evidence normally considered at these hearings include financial records of estate accounts; witness testimony supporting or refuting any allegations of theft or wrongdoing by the executor; communications by the executor to beneficiaries; and any statements or documents produced by the executor in response to a formal demand for an accounting by a beneficiary.

If the probate court finds that continued injunctive relief is necessary to protect the estate, it may enter a temporary injunction prohibiting the executor from taking actions that could further deplete, conceal, transfer, or misappropriate estate assets. This relief can remain in place while the case proceeds and can provide beneficiaries with critical protection during the period when evidence is gathered, accountings are reviewed, and the executor’s conduct is litigated. Although a temporary injunction does not finally resolve claims for theft, breach of fiduciary duty, or recovery of estate assets, it can preserve the estate and prevent additional harm until the court reaches a final decision.

Removal of an Executor Who is Stealing from the Estate

One of the most effective remedies available to beneficiaries who suspect an executor of theft is a petition to remove the executor from office. Removal immediately cuts off the executor’s authority to manage estate assets and prevent further stealing from the estate while the dispute is resolved. The Texas Estates Code provides two procedures for removing an independent executor: removal with notice and removal without notice.

Removal of an Executor with Notice

Section 404.0035 of the Texas Estates Code permits a probate court to remove an independent executor after notice and a hearing. This procedure is appropriate when the executor has failed to perform their duties or has otherwise demonstrated that they are unfit to continue serving.

An executor may be removed under Section 404.0035 for a variety of reasons, including failing to file a required inventory, failing to provide an accounting when required by law, becoming incapacitated, becoming incarcerated, or otherwise becoming incapable of properly administering the estate.

The statute also authorizes removal when the executor is proved to have engaged in “gross misconduct” or “gross mismanagement” in the performance of their duties. These grounds frequently arise when an executor places their own interests ahead of those of the beneficiaries. Examples may include paying excessive compensation to themselves, using estate funds for personal expenses, engaging in self-dealing transactions, or otherwise breaching the fiduciary duties owed to the estate and its beneficiaries.

While removal with notice is an important remedy, it has one significant limitation: the executor receives advance notice of the proceeding and remains in control of the estate until the court orders otherwise. In cases involving suspected theft or ongoing misappropriation of estate assets, this delay may provide an opportunity for additional wrongdoing. For that reason, when there is credible evidence that estate assets are being stolen or are in immediate danger of being misappropriated, removal without notice may be the more effective remedy.

Removal of an Executor without Notice

Section 404.003 of the Texas Estates Code allows a probate court to remove an independent executor without prior notice under limited circumstances. The most significant of those circumstances is when an executor is stealing from the estate, specifically, that “sufficient grounds appear to support a belief that the independent executor has misapplied or embezzled, or is about to misapply or embezzle, all or part of the property committed to the independent executor’s care.”  See Tex. Est. Code § 404.003(2).

This extraordinary remedy recognizes that some situations require immediate court intervention. If an executor is actively diverting estate funds, transferring estate property to themselves, concealing assets, or otherwise engaging in conduct that threatens the estate, requiring advance notice may defeat the purpose of the proceeding. By the time a hearing can be held, the assets may be gone.

To obtain a removal without notice, the party seeking removal must present evidence establishing more than mere suspicion or family disagreement. Bank records, unexplained transfers, forged documents, false accountings, self-dealing transactions, witness testimony, or other objective evidence of misconduct may provide sufficient grounds for emergency relief.

If the court grants the application, the executor’s authority is immediately terminated, and the court may appoint a successor representative to protect and administer the estate. The removed executor is entitled to later challenge the allegations and seek reinstatement, but the estate’s assets remain protected while the dispute is litigated.

Removal of the executor should not be viewed as the end of the case. Once an executor has been removed, beneficiaries may pursue additional remedies to recover misappropriated assets, obtain an accounting, seek damages for breaches of fiduciary duty, surcharge the executor for losses caused to the estate, and, in appropriate circumstances, refer the matter to law enforcement authorities for criminal investigation.

Because executor theft often becomes more difficult to remedy as time passes, beneficiaries who discover evidence of embezzlement, self-dealing, or other financial misconduct should act quickly. Prompt action can stop further losses, preserve evidence, and significantly increase the likelihood that estate assets will ultimately be recovered for the benefit of the rightful beneficiaries.

Turnover Orders and Recovery of Stolen Estate Property

In many cases, an executor who is stealing from an estate does not spend the stolen funds immediately. Instead, the executor may retain possession of wrongfully-obtained estate property and refuse to distribute it to the beneficiaries or heirs. When this occurs, beneficiaries may seek a turnover order requiring the executor – or in some circumstances a third party – to deliver estate property to the person legally entitled to possess it.

Texas probate courts possess broad authority to protect and recover estate property. Among other powers, a probate court may order a person in possession of estate assets, records, or documents to surrender those items to the estate’s personal representative or to another person designated by the court. See Tex. Est. Code §§ 351.051, 351.052, 351.053; see also Tex. Est. Code § 32.001 (granting probate courts broad jurisdiction over matters related to the settlement, partition, and distribution of estates).

Turnover relief can be particularly useful where an executor has removed cash from estate accounts, transferred personal property to themselves, retained estate records, or taken possession of assets that should be distributed to beneficiaries. In such situations, the probate court may order the return of the property itself rather than merely awarding monetary damages at the conclusion of the litigation.

For example, a turnover order may be used to compel the return of original estate records, financial statements, jewelry, firearms, collectibles, vehicles, or funds improperly transferred from estate accounts. If the property has been transferred to another person, additional proceedings may be necessary to determine whether the recipient received the property in good faith and whether recovery remains available.

Turnover orders are often sought in conjunction with other remedies, including injunctive relief, accountings, removal proceedings, and claims for breach of fiduciary duty. Because they focus on the immediate recovery and preservation of estate assets, turnover orders can be an effective tool for preventing further losses while a probate dispute remains pending.

When estate assets have been wrongfully withheld, concealed, or transferred, prompt action is critical. The sooner a beneficiary seeks court intervention, the greater the likelihood that the property can be located, preserved, and ultimately returned to the estate for distribution to its rightful beneficiaries.

Lawsuit to Recover Damages Cause by Executor Theft

Removing an executor who is stealing does not automatically restore the stolen property to the estate. If estate assets have already been misappropriated and cannot be recovered, beneficiaries and other interested parties may need to pursue causes of action against the executor to recover damages and hold the executor financially accountable for their misconduct.

An executor occupies a fiduciary position and owes the highest duties of loyalty, honesty, full disclosure, and fair dealing to the estate and its beneficiaries. When an executor steals estate property, engages in self-dealing, conceals assets, or otherwise acts for their own benefit at the expense of the estate, they may be liable for breach of fiduciary duty. Through a civil lawsuit, beneficiaries may seek to recover the value of misappropriated assets, lost income generated by those assets, and other damages caused by the executor’s misconduct.

In many cases, a civil action will include claims for breach of fiduciary duty, conversion, fraud, constructive fraud, unjust enrichment, or money had and received, depending on the nature of the executor’s conduct. The lawsuit may seek both monetary damages and equitable remedies designed to recover specific property that was wrongfully taken from the estate.

Texas courts have broad authority to impose remedies against an executor who has misappropriated estate assets. For example, a court may order the executor to return property to the estate, impose a constructive trust on assets acquired with stolen funds, require the executor to disgorge profits obtained through their misconduct, or enter a money judgment for losses sustained by the estate. Depending on the causes of action asserted and the statutory or equitable basis for recovery, the court may also award attorney’s fees.

A civil lawsuit can be particularly important when estate assets have been transferred to third parties or converted into other forms of property. For example, an executor who steals cash from an estate may use those funds to purchase real estate, vehicles, investment accounts, or other assets. Through tracing and equitable remedies such as a constructive trust, beneficiaries may be able to follow the stolen funds and recover property purchased with estate assets.

The discovery process available in civil litigation can also be a powerful tool for uncovering executor theft. Beneficiaries may obtain bank records, financial statements, tax returns, communications, and other evidence that would otherwise be unavailable. Depositions and subpoenas can often reveal the full extent of an executor’s misconduct and identify additional assets available for recovery.

Because executor theft frequently involves complex financial transactions and efforts to conceal wrongdoing, it is often advisable to pursue civil claims as soon as credible evidence of misconduct emerges. Delays can make it more difficult to locate assets, preserve evidence, and collect on a future judgment. Prompt legal action can significantly improve the likelihood that misappropriated property will be recovered and returned to the estate for the benefit of its rightful beneficiaries.

Importantly, a civil lawsuit may be pursued in addition to other remedies available under the Texas Estates Code. Removal of the executor, requiring the executor to post a bond, obtaining an accounting, and pursuing claims for damages are not mutually exclusive remedies. In many cases, the most effective strategy involves pursuing several of these remedies simultaneously to stop ongoing misconduct, preserve estate assets, and maximize the likelihood of recovery.

But what if, as is often the case, an executor has insufficient assets to pay back the estate for what they have stolen? In these unfortunate instances, the estate’s beneficiaries end up losing some or even all their inheritance from a deceased loved one. Because stolen funds cannot always be recovered later, it is imperative that affected individuals take action to prevent further theft by an executor as soon as they become aware of it.

Can an Executor Be Criminally Prosecuted?

In some cases, an executor who steals or misappropriates estate property may face not only civil liability, but also criminal prosecution. An executor who steals estate assets, forges documents, conceals property, falsifies records, or otherwise appropriates estate property for personal use may violate various provisions of the Texas Penal Code, including theft, fraud, forgery, tampering with governmental records, or misapplication of fiduciary property.  See Tex. Penal Code §§ 31.03, 32.21, 37.10, 32.45.

Misapplication of Fiduciary Property

Of these offenses, the crime most directly applicable to an executor stealing estate assets is misapplication of fiduciary property. Section 32.45 of the Texas Penal Code makes it a criminal offense for a fiduciary – including an executor, administrator, trustee, guardian, or attorney-in-fact – to intentionally, knowingly, or recklessly misapply property entrusted to them in a manner that involves a substantial risk of loss to the owner or beneficiary of the property. Depending upon the value of the property involved, the offense can range from a misdemeanor to a first-degree felony.

Reluctance of Law Enforcement Authorities to Get Involved

Despite the existence of potential criminal remedies, beneficiaries should understand that law enforcement agencies are frequently reluctant to become involved in disputes involving estates. Police officers, investigators, and prosecutors often view allegations of executor misconduct as civil disputes concerning inheritance rights, fiduciary duties, and probate administration. As a result, criminal investigations are often reserved for the most egregious cases involving clear evidence of theft, forged documents, falsified records, or large-scale misappropriation of estate assets.

Consequently, beneficiaries should not assume that reporting an executor who is stealing to law enforcement will immediately result in criminal charges or recovery of estate property. In many instances, pursuing civil remedies through the probate court – such as obtaining an accounting, removing the executor, seeking injunctive relief, and filing suit for breach of fiduciary duty – may provide a more effective and immediate means of protecting estate assets and recovering losses.

Attorneys Cannot Threaten Criminal Prosecution in a Civil Proceeding

It is also important to understand that attorneys are subject to ethical limitations when criminal conduct is suspected. Rule 4.04(a) of the Texas Disciplinary Rules of Professional Conduct generally prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to gain an advantage in a civil matter. Accordingly, while evidence of criminal conduct may ultimately be referred to appropriate law enforcement authorities, the purpose of probate litigation should be to protect estate assets and obtain lawful civil remedies – not to use the threat of criminal prosecution as leverage in settlement negotiations.

Conclusion

Executor theft can be devastating. In many cases, the assets at issue represent a lifetime of hard work and the final legacy that a loved one intended to leave to their family. When an executor abuses their position of trust by stealing, concealing, or misusing estate property, the financial and emotional consequences can be severe.

If you believe an executor is stealing from an estate, delaying action can have serious consequences. Estate assets can be transferred, spent, concealed, or otherwise dissipated long before the administration is completed. The Aldrich Law Firm represents clients in probate disputes in San Antonio and throughout Texas, including cases involving executor theft.

If you have concerns about an executor’s conduct or would like to discuss your legal options, please contact us to schedule a consultation.