In Texas, an executor or administrator, like a trustee has to account for the property that comes into his possession. The accounting obligations of a trustee are discussed here. This article will discuss the accounting obligations of an executor or an administrator in a probate matter.

What is an accounting? An accounting is a written statement detailing the financial condition of the estate. It includes:

1. The property belonging to the estate which has come into his hands.
2. The disposition that has been made of such property.
3. The debts that have been paid.
4. The debts and expenses, if any, still owing by the estate.
5. The property of the estate, if any, still remaining in his hands. And,
6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.

In all cases, when the fiduciary does not file an accounting, an interested party can demand an accounting. The Texas Estates Code 404.001 says that an accounting can be demanded fifteen months after the executor has been appointed. If the executor or administrator does not file an accounting with 60 days after the demand, the Texas Probate Code provides that an interested party can file suit against the fiduciary to compel the accounting.

Fiduciary responsibility in Texas – If you are dealing with an executor, administrator or trustee and you are not receiving regular updates about the financial condition of the property under his control, you probably need to contact an attorney about your rights before the estate is squandered away.

Fiduciary responsibility in Texas – Fiduciary is a general term. A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. It includes executors, administrators, holders of powers of attorney and others who have custody and control of the property or affairs of others or in whom someone has placed trust and confidence. A fiduciary duty is the most exacting civil duty recognized by law. The fiduciary owes the beneficiaries the duties of loyalty and good faith, integrity of the strictest kind, fair, honest dealing and the duty not to conceal matters which might influence his actions to his principal’s prejudice.

The law often imposes the obligation on the fiduciary to place the interest of the beneficiary before the fiduciary’s own interest. This is in addition to the fiduciary’s duty of good faith and fair dealing.

When a fiduciary duty is imposed, equity requires a stricter standard of behavior than the comparable tortious duty of care at common law. It is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where his fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from his fiduciary position without express knowledge and consent. A fiduciary cannot have a conflict of interest. It has been said that fiduciaries must conduct themselves “at a level higher than that trodden by the crowd” and that “[t]he distinguishing or overriding duty of a fiduciary is the obligation of undivided loyalty.”

While there are some relationships on which the law imposes a fiduciary duty such as executors, administrators, holders of powers of attorney, etc., not all relationships of trust create fiduciary duties. Mere subjective trust alone is not enough to transform arm’s-length dealing into a fiduciary relationship. Businessmen generally do trust one another, and their dealings are frequently characterized by cordiality. To create a fiduciary relationship, however, there must be more than mere subjective feelings on one side.

A fiduciary has an affirmative duty to make a full and accurate disclosure of all material facts that might affect the beneficiary’s rights. The trust accounting is the primary way that the beneficiary obtains information that will allow him to protect his rights. The accounting should be in a form that is clear and understandable and allows the beneficiary to get a complete picture of the administration of the trust.

Under the Texas trust code, the trustee is not required to make any formal accounting within a particular time. However, a beneficiary has the right to demand an accounting. Except for exceptional circumstances, the beneficiary can demand an accounting any time after 12 months since the last accounting. If there has never been an accounting, the beneficiary can demand one immediately. Once the demand has been made, the trustee has 90 days to make the accounting. If the trustee does not make the accounting within 90 days, the beneficiary can file suit and the trustee may be liable from his personal funds for the beneficiary’s attorney’s fees. He may also be removed as trustee by the court for failing to make the accounting.

The trust code provides that the accounting must include:

1. The trust property that has been received and was not previously listed in a prior accounting.
2. A list of receipts and disbursements, allocated between income and principal.
3. A list and description of all property being administered (with descriptions.)
4. Cash accounts, their balance, and where they are deposited.
5. A list of all trust liabilities. §113.152

While a beneficiary is not required to accept anything less than a full accounting, he may want to ask the trustee to provide an informal accounting that is not as extensive as the trust code accounting. The beneficiary needs to let the trustee know that he is not waiving his rights to a full accounting but might be satisfied by the trustee letting the beneficiary look at the books and records, review financial statements, look at tax returns, etc.

Since the trust code accounting may be expensive and the reasonable and necessary cost of that are ordinary expenses of the trust, the trustee may threaten the beneficiary by claiming that an accounting will be very expensive for the trust which would leave fewer funds that will eventually go to the beneficiary. However, since the trustee is under an obligation to keep complete books and records, the accounting should not be expensive. If it is, the trustee may have committed a breach of his fiduciary duty by failing to maintain those books and records in good order so that a complete and inexpensive accounting can be made.

One problem for the beneficiary of obtaining an accounting from a trustee is that if the accounting discloses bad conduct on the part of the trustee, the statute of limitations may start running from the date of the accounting. That puts the burden on the beneficiary to take some action to protect his rights. If the action is not taken in the proper time frame, the beneficiary could lose some rights.

Trustee Accounting

One of the primary duties of a trustee is to keep full, accurate and orderly records concerning the status of the trust estate and all acts performed by him. He is charged with maintaining an accurate account of all the transactions relating to the trust property. Some states require a formal written accounting by the trustee on an annual basis, but Texas does not. Texas does have a provision that beneficiary or “interested person” can demand that the trustee give a written accounting of the trust.

The Tex. Prop. code 113.151 defines the right to an accounting from trustees or other fiduciaries subject to the Trust Code. The trustee must make the written accounting within 90 days. If he does not, the court can order him to make an accounting and two personally pay the attorneys fees and costs for not making the requested accounting.

the written accounting by the trustee must show:

1. all trust property that has come to the trustee’s knowledge or into the trustee’s possession and that has not been previously listed or inventoried as property of the trust;
2. a complete account of receipts, disbursements, and other transactions regarding the trust property for the period covered by the account, including their source and nature, with receipts of principal and income shown separately;
3. a listing of all property being administered, with an adequate description of each asset;
4. the cash balance on hand in the name and location of the depository where the balance is kept; and
5. all known liabilities owed by the trust.

Executor Accounting

Learn about Executor accounting requirements here.

In Texas, a beneficiary has a right to know what is going on with the money being held by a fiduciary. Whether the fiduciary is an executor, an administrator, or someone with a power of attorney, the right of the beneficiary to documentation is the same.
When the fiduciary fails, after proper requests, to furnish financial documents to which the beneficiary is entitled, the court can hold the fiduciary in contempt and even send him to jail.
While jail time is an extreme remedy, the court can impose it if the beneficiary is denied financial documents by the fiduciary that he is entitled to without good cause. 05-19-00327-CV.