## Facts

- James Kappus and his brother John Kappus became 50/50 cotenants of approximately 49.5 acres in Anderson County, Texas, after their father’s death and probate.
- Various improvements were made to the property over time, including improvements by James alone, by James and his then-wife Sandra, and by John alone.
- James and Sandra divorced in 2004; the divorce decree granted Sandra an equitable lien on the real estate for her share of community-funded improvements.
- James later executed a will naming John as independent executor and creating a testamentary trust for James’s children, with John as trustee.
- After James died in 2005, John qualified as independent executor and sought to sell the property to pay estate debts.
- A proposed sale offered $110,000 cash plus assumption of a $7,000 debt on a mobile home on the property; John proposed dividing net proceeds 50/50 between himself and the estate based on cotenancy ownership.
- Sandra, acting for the children, objected, contending the estate should receive more than 50% due to improvements attributable to James and/or the marital community; she obtained an injunction preventing the sale from closing.
- Sandra also sought John’s removal as independent executor and trustee, alleging conflict of interest, waste, denial of access, and excessive probate expenses.
- The probate court denied removal and approved a modified proceeds allocation giving the estate a slightly larger share to account for certain improvements.
- The court of appeals affirmed the allocation but reversed on removal, holding John’s status as both cotenant and executor required removal as a matter of law.
- The Texas Supreme Court granted review on whether this alleged conflict required removal under Texas Probate Code § 149C.

## Issues

1. Whether an independent executor must be removed as a matter of law under Texas Probate Code § 149C based solely on an alleged conflict of interest arising from a good-faith dispute over the executor’s ownership share in co-owned property.
2. Whether a “conflict of interest” is an independent ground for removing an independent executor when it is not listed among the statutory grounds in § 149C.

## Decision

- The Texas Supreme Court reversed the court of appeals and reinstated the probate court’s order denying removal of John as independent executor and trustee.
- The Court held that § 149C sets out the exclusive statutory grounds for removing an independent executor and does not include conflict of interest as a stand-alone ground.
- A good-faith disagreement about the executor’s percentage ownership of estate assets, without proof of a statutory removal ground (such as misapplication of assets or gross mismanagement), does not require removal.

## Legal Principles

- Removal of an independent executor is governed by the exclusive, enumerated grounds in Texas Probate Code § 149C; courts may not add a non-statutory “conflict of interest” removal standard.
- An executor’s overlapping personal interests (including co-ownership of estate-related property) do not mandate removal absent evidence fitting a statutory ground such as misapplication/embezzlement, gross misconduct or gross mismanagement, incapacity, failure to comply with court orders, or similar listed bases.
- A conflict may be relevant only insofar as it results in conduct that satisfies a statutory removal ground; conflict alone is insufficient.
- Courts should respect the testator’s selection of an independent executor unless statutory conditions for removal are established.

## Conclusion

The Texas Supreme Court held that Texas Probate Code § 149C provides a closed list of removal grounds for independent executors and that an alleged conflict stemming from a good-faith ownership dispute over co-owned property does not, by itself, require removal.


Kappus v. Kappus, 284 S.W.3d 831 (Tex. 2009)