Q: Can an independent executor act as a trustee and sell property?
Can a testator in Texas grant an independent executor, who is neither a legal heir nor family member but the primary beneficiary, the authority and powers typically given to a trustee, especially when no trust exists? The executor is also the CEO, President, and part-owner of the nursing home where the testator resided. Concerns include the executor selling real property purchased through the Veterans Land Board at a $300,000 loss and initiating an heirship determination for a spouse despite the existence of a will presented as a muniment of title. The executor claims authority to sell land and seeks a beneficiary percentage without following fiduciary guidelines, and no notices have been received to contest actions. An heirship proceeding initiated by the executor is currently pending.
A:
Yes, a testator can appoint an independent executor who is not an heir at law and who is a beneficiary under the testator's Will.
It is common in drafting a Will to say that an independent executor has all of the powers of a trustee even when the Will does not create a trust. That is a useful way of denoting the testator's intention as to the scope of powers the testator wants to give to the independent executor in dealing with the estate.
It is common that the independent executor is a beneficiary under the testator's Will.
It is NOT common that a primary beneficiary is not an heir of the testator but instead is the CEO and part owner of the nursing home where the testator lives. THAT is the one thing that really ought to be closely scrutinized and raises a question as to why the testator would name that person as primary beneficiary and independent executor.
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