Executors, administrators, trustees, and agents under a power of attorney are fiduciaries. Each one manages property that belongs to someone else and owes duties to the people entitled to it. In general, a fiduciary must keep that property separate from personal funds, use it only for the estate or trust, avoid transactions in which the fiduciary is on both sides, treat beneficiaries impartially, and keep records of every transaction.
The duty to keep records decides many of these cases. A fiduciary who cannot document where the money went has a hard time defending the transactions. Texas law gives beneficiaries ways to demand those records and gives courts the power to compel them.
Most people call with a set of facts that do not add up, not a finished legal theory. The facts we hear most often include these:
None of these facts proves a breach by itself. Each is a reason to get the records, and the records show whether there is a claim.
If the estate is in an independent administration, Estates Code §404.001 lets any interested person demand a written accounting from the independent executor once fifteen months have passed since letters were first issued. If the executor does not comply within 60 days after receiving the demand, the person who made it may file an action in the probate court to compel it.
In a dependent administration, the administrator must file an annual account with the court under Estates Code §359.001, so the numbers should already be in the court file. Failing to file a required account is a ground for removal under §361.052.
Tex. Est. Code §§404.001, 359.001, 361.052.
Trust beneficiaries have a separate remedy. Under Property Code §113.151, a beneficiary may make a written demand that the trustee deliver a statement of accounts covering all transactions since the last accounting or since the trust was created. If the trustee does not deliver it within 90 days, a beneficiary may sue to compel it, and the court may award the beneficiary attorney’s fees and costs against the trustee.
Property Code §112.054 addresses a different problem. It allows a trustee or beneficiary to ask the court to modify or terminate a trust, or to change the trustee, in the circumstances the statute lists. It is the provision to look at when the terms of the trust, or the person serving as trustee, are the problem rather than missing information.
Tex. Prop. Code §§113.151, 112.054. Trust and estate disputes often arise in the same family. The trust litigation page covers trust cases.
Nueces County has no statutory probate court. Probate cases go to the county courts at law, which hear other civil matters as well. Government Code §25.1802(a)(6) gives those courts concurrent jurisdiction with the district court in actions by or against a personal representative and in actions involving inter vivos, testamentary, and charitable trusts. A claim against an executor or trustee can usually be filed in either a county court at law or the district court, and the better choice depends on the facts.
Because these judges carry other kinds of cases, we prepare fiduciary matters with organized exhibits and ask only for relief the documents support.
Tex. Gov’t Code §25.1802(a)(6).
Many fiduciary cases settle. A Texas court may refer a pending case to mediation or another alternative dispute resolution procedure on its own motion or a party’s motion under Civil Practice and Remedies Code §154.021. Settlement talks are more productive once the accounting has been produced, because both sides are working from the same numbers.
Kreig LLC handles contested matters: breach of fiduciary duty claims, executor and administrator removal, will contests, contested heirship proceedings, and trust disputes.
Bring the last accounting you received and any bank records you have. We will tell you whether a Nueces County court can be asked to order a full accounting.
The first consultation is short and free.