Learn About Limitations for Removing a Trustee

Robert Ray

In 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.

The Texas Supreme Court said that removal of a trustee was not like the recovery of damages which would be barred by limitations.  The removal was not subject to limitations since the trustee was a fiduciary.  “…even if the probate court’s removal of (the daughter) had been based solely on a conclusion that she committed a discrete breach of fiduciary duty, we conclude that the court’s discretion to remove a trustee for such a breach is not subject to a statutory limitations period running from a specified period after the breach. Instead, the removal decision turns on the special status of the trustee as a fiduciary and the ongoing relationship between trustee and beneficiary, not on any particular or discrete act of the trustee.”

Once a fiduciary commits some breach of his duties, he can be removed even if the breach happened long ago.

Note: This case deals with ongoing actions by the trustee, not a specific action by the trustee. When the complaint is about a specific act, the four year statute of limitation applies. I have written about that here.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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 Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

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


There are new cases all the time that clarify or change the law on inheritance disputes. Keep up-to-date by subscribing to our blog.



Recent Posts

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...

Can the lawyer be a beneficiary?

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 a “descendant” in Texas Probate Court?

Who is a “descendant” in Texas Probate Court?

Who is a descendent? 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...

Find Out How a Bank Can Breach a Fiduciary Duty

In 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...

No Results Found

The page you requested could not be found. Try refining your search, or use the navigation above to locate the post.

The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
© Copyright 2024 | All Rights Reserved.

Pin It on Pinterest

Share This