Interesting cases

Learn About Limitations for Removing a Trustee

Learn About Limitations for Removing a Trustee in TexasIn Ditta v Conte, a Texas Supreme Court court case in June 2009, the Court decided the issue of what statute of limitations applies when someone attempts to remove a trustee.

The father and mother created a trust. The survivor of the two was the primary beneficiary of the trust.  The son and daughter of the father and mother were the remainder beneficiaries. The father died. The wife and the two children became co-trustees of the trust. Thereafter, the mother was declared mentally incapacitated and Ditta was appointed guardian of her estate. The son managed the trust on a day to day basis. A dispute developed between the two children and many suits were filed. It was discovered that both the son and daughter were using the trust funds to pay personal expenses. The trial court removed the son as a trustee.  Thereafter, the court appointed a third person as temporary trustee and suspended the daughter as a trustee. An accounting showed many irregularities.  

Ditta then asked the court to remove the daughter as a trustee and appoint a new trustee.  The court removed the daughter and appointed a bank as trustee. The daughter appealed on the basis that the four year statute of limitations applied. She said that the things that she did in violation of the trust occurred more than four years before Ditta asked for her removal and were barred by limitations.

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Find Out How a Bank Can Breach a Fiduciary Duty

Find Out How a Bank Can Breach a Fiduciary Duty in TexasIn a Texas case decided in 2005, a man had an account at a financial institution.  He originally opened the account as a joint account with right of survivorship with his daughter.  That means that he and his daughter were joint owners and when the first one died, the account would belong to the survivor without passing through the estate of the one to die.

The man and his daughter later changed the account for tax purposes.  They made the account the sole account of the man.  When the man became ill, he wanted to change the account back to a joint account with right of survivorship with his daughter.  He contacted the institution.  He told them what he wanted to do.  The representative told the man that he would prepare the paper work and that someone could pick it up.  Once the man signed the paperwork, it should be returned to the institution.  The daughter picked up the documents, the man signed them then the daughter took them back to the representative.  The representative had left for the day so the daughter left them with his secretary.  Some of the documents made it to the right place but some did not.  The daughter started writing checks on the account which the institution processed.  The institution issued statements showing the account as a joint account with right of survivorship listing the man and his daughter.

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Who is a "descendant" in Texas Probate Court?

Who is a "descendant" in Texas Probate Court?A recent case dealt with the question of "who is a descendant?"  A will made a gift to the descendants of the testator's son and daughter.   The testator added this phrase - "descendants living at this time are..." then named his grandchildren who were living at the time that he made the will. The grandchildren were the children of his son and daughter.  Years later, the son divorced his wife and married another woman.  He then adopted the two adult children of his new wife.

The question that the court had to answer was whether or not the two children adopted as adults were descendants under the will? 

The other descendants, including the children of the son from his first marriage, argued that the identification of descendants "living at this time" excluded the adopted adults. The adopted adults were living at the time the testator executed his will but were unknown to the testator.

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Can the lawyer be a beneficiary?

Can the lawyer be a beneficiary in Texas?The quick answer is no, he can’t.  Texas has a statute that says that a devise or bequest of property in a will to the attorney who prepares or supervises the preparation of the will or to an heir or employee of the attorney is void.  This statute applies to anyone who is not related to the attorney.  The attorney can be a beneficiary of his family's wills even if he prepares it.

In a recent case, an attorney had a woman working in his office that was an independent contractor.  She was not an employee of the attorney.  She was a paralegal but she just did occasional work for the attorney.  She also did occasional work for other attorneys who shared office space with the attorney who drafted the will.  The will made her a beneficiary and also appointed her as the executor of the will.

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Can a Husband or Wife Inherit After a Divorce in Texas?

Can a Husband or Wife Inherit After a Divorce in Texas?Texas law provides that all provisions in a will in favor of a former spouse “must be read as if the former spouse failed to survive the testator” and are null and void. Therefore, if you get divorced and don't change your will, you ex-wife will not inherit under your will even if you want her to inherit from you. You would have to make a new will after the divorce in order for her to inherit from you under your will. Of course, if you don't want her to inherit under the will, the law voids all provisions for her. To be safe, you need to change your will if there is a divorce. A recent case decided by the Texas Supreme Court, In re Estate of Nash, shows how expensive litigation can result if you don't change your will.

Nash's Will left everything to his wife, or if she predeceased him then to his stepdaughter. Nash and his wife later divorced, but he never changed his Will. Nash died and both his ex-wife and her daughter, Nash's step-daughter, survived him. A relative filed for probate seeking all of Nash's property for Nash's other heirs at law saying that the provisions in the will giving everything to his ex-wife and his ex-step-daughter were no longer valid. Since the will made no other provisions for the property, the relatives said that the property went to Nash's heirs at law (nieces and nephews, etc.). In contesting the probate, the ex-stepdaughter said that the property belonged to her arguing that Texas law treats the divorced wife as having predeceased Nash therefore the provision that if his wife predeceased him everything would go to the step-daughter came into effect.

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Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Tyler, Texas.

Robert Ray, Texas inheritance attorney.Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Tyler, Texas.

Robert Ray, Texas inheritance attorney.Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

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