A person who is an Executor, Administrator, Trustee, or who has a Power of Attorney is a fiduciary. A fiduciary must act in the best interest of the beneficiaries and show that each of his actions was in the beneficiaries’ best interest. When an action benefits the fiduciary in any way, there is a presumption of unfairness, and the fiduciary may be liable.
David Johnson, an attorney who writes on fiduciary litigation, has an article that addresses the case of In re Estate of Klutts, 02-18-00356-CV, (Tex. App.—Fort Worth December 19, 2019, no pet. history). In Klutts, a son who had a power of attorney helped his mother prepare a new will which benefited the son. When the mother died, he attempted to probate the new will. However, his siblings contested the will. The son asked the court to dismiss the contest because his siblings had no evidence that he unduly influenced his mother. The trial court agreed with the son and rejected the will contest. On appeal, the appeals court reversed.
The appeals court held that because he had a power of attorney, the son had to overcome the presumption of undue influence. Thus, the burden was not on the siblings to prove undue influence but on the son to disprove it.
Breach of Fiduciary Duty has a Four Year Statute of Limitations
I wrote an article that explains that executors, trustees, people holding a power of attorney and others are fiduciaries. You can view that here.
I have written before about the limitations period for breach of fiduciary duty here. In that article, I talked about a Texas Supreme Court ruling that said there was no limitations period for an action to remove a fiduciary. The idea being that the wrongs being committed for which a removal is sought are ongoing. There is no specific date that a wrong occurred.
Limitations for a specific wrong do have a specific date and the four year statute of limitations applies. In a recent case, a trustee gave a deed of some of the property in the trust. The plaintiffs “asserted that they were residual, contingent beneficiaries of testamentary trusts…” and that the deed denied them benefits that they would have otherwise received because there was not much left in the trust.
The deed was filed in 2010 but suit was not filed until 2015, more than four years after the deed was recorded. The appeals court upheld the trial courts dismissal because of limitations. 11-16-00253-CV.
In a recent case in Texas, a mother and father had a trust for the benefit of their two children. The mother died. The father later remarried and had two additional children. The father attempted to revoke the first trust and made provisions for the property to go to his four children, share and share-alike. When the father died, one of the first two children asked the court to declare that the revocation of the first trust was invalid. The court agreed stating: (more…)
This post concerns fiduciary duties in Texas. The case that is discussed deals with an Executor but could also apply to a trustee or any other fiduciary in Texas. A court of appeals ruled in 2014 that a Texas Executor commits breach of trust not only where he violates a duty in bad faith, or intentionally although in good faith, or negligently but also where he violates a duty because of a mistake. Executor Violates Duty because of a Mistake even if he relied on his attorney for advise. No. 02-14-00170-CV.
Executor Violates Duty because of a Mistake
A man died. He had two sons. First son was appointed executor under the man’s will. Second son was, for some reason, not (more…)
On occasion, an attorney contesting a will will run across a Deed to a Trustee when there is no trust. For instance a deed that is given “To John Smith, Trustee.” There are no documents showing that a trust ever existed. The question comes up about ownership of the property. Does the person listed as trustee own the property outright? Is it owned by someone else? How do you untangle the title to the property?
Courts have devised several ways to handle these situations based on the facts of the case. If the deed shows that the property was given for consideration paid by the person named as trustee, then that person named trustee owns the property outright. Even though he is listed as trustee, he has full ownership of the property if no trust document is found.
On the other hand, if the deed does not indicate that consideration was involved, a resulting trust is said to exist. In a resulting trust, the original grantor, the person who gave the deed to the person named “as trustee” retains ownership of the property. If that person is dead, his heirs own the property. Compare 802sw2d880 with 564sw2d404.
Title search after conveyance
When not considering ownership but just considering whether a deed from a “Trustee” is valid then the mere designation of a party as “Trustee,” “as Trustee,” or “Agent” following the name of a grantee, without additional language actually identifying a trust, does not in itself create a trust and it does not give notice or put an examiner upon inquiry that a trust does exist or that any person other than the present grantee has a beneficial interest. 12SW2d175, 137ALR460, 462-65; 682SW2d246. This “blind trustee” concept was first enacted into statutory form as a conveyancing statute. This statute was used for many years to avoid filing trust instruments of record and to escape the formality of creating a trust where title was held by a “nominee.” For example, when a conveyance is made to “Jack Smith, Trustee” and the creating instrument does not identify a trust or the name of any beneficiary, the trustee may “convey, transfer, or encumber the title of the property without subsequent question by a person who claims to be a beneficiary under a trust or who claims by, through, or under any undisclosed beneficiary or by, through, or under the person designated as trustee in that person’s individual capacity.” TPC § 101.001. Moreover, in this situation, “the trust property is not liable to satisfy the personal obligations of the trustee.” TPC § 101.002. See also TCP § 114.082 and 164SW2d488. If there is no subsequent conveyance out of the “blind trust” and no other evidence that a trust exists, record title to the property interest in question is deemed to be in the named trustee or the trustee’s successors. 802 S.W.2d 880.
Recent cases where the trust instrument can’t be found
A 2016 case shows additional complications that arise when a trust instrument doesn’t exist. No. 03-13-00768-CV.
A fiduciary owes the highest duty imposed in law to the person (beneficiary) over whose property he has control. A fiduciary might be appointed to administer a trust or handle an estate. The appointment will set out the rights and powers of the fiduciary. Based on these powers, the fiduciary will have the power to make decisions about the best use of the property. These discretionary powers may include the power to sell property, to invest, to rent or to exchange property.
Can a fiduciary delegate these discretionary powers? The general rule is that he can’t. 174/2 963. Usually when the trustee tries to delegate his powers, something bad is happening. For instance, an elderly trustee might be under the undue influence of someone who wants to use the trust property to benefit himself. Another example is where a person who doesn’t know the first thing about being a fiduciary relies on someone who takes advantage of the situation.
There are some cases where the courts have said that a trustee could delegate his discretionary duty. In a case where the trustee and beneficiary were the same person and this person and the trust, through the trustee, also were the guarantors on a note, the Supreme Court held that the beneficiary could not claim that the trustee had no right to delegate his duty to guarantee the note. 586/2 472. While this seems contrary to the general rule, when all the people involved are the same, you’re not going to avoid liability by claiming that you had no right to do what you did.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
