In small counties in Texas, the county judge hears probate matters. The county judge is an administrative position similar to that of a mayor in a city. The judge does not have to be an attorney. Since most probate matters just involve filing the will for probate and having the judge admitting it to probate, a non judge can handle this administrative process. If the will, or any part of the probate, becomes contested the judge “may” on his own or “shall” on the motion of any party transfer the case to a court with a judge who is an attorney. If the county has a county court at law, the probate will be transferred there. If the county does not have a county court at law, the case will be transferred to a district court in the same county unless any party request a statutory probate judge be assigned to the case. In that event, the county court must transfer the case to a statutory probate judge. A statutory probate judge is a judge who (more…)
In Texas, a trustee or other fiduciary may not be able to avoid liability for breach of his fiduciary duty by relying on other professionals like accountants and attorneys. In a case in Houston, children sued their father who was the trustee of the grandmother’s trust. During his deposition, the father repeatedly answered “I don’t recall” and “I don’t remember” to questions about his handling of trust assets. He said that he relied on the advise of his accountant and his attorney.
The father filed a no-evidence summary judgment, a trial mechanism that basically says the other side has no evidence to support their case and it should be dismissed. Normally, the children would have to put on evidence that the father did what they alleged. However, as the appeals court pointed out in cases of breach of fiduciary duty, the burden was on the father to show that he did not breach that duty, not on the children to show that he did. The court also pointed out that the father’s answers of “I don’t recall” and “I don’t remember” were evidence of a breach. The reliance on professionals like accounts and attorneys might win a jury verdict but they could not be used in a no-evidence summary judgment. No. 14-09-00837-CV.
In Texas, fiduciaries like trustees, executors, administrators, etc. are held to the highest duty imposed by law in civil cases. Once a claim is made that they breached that duty, the burden shifts to them to show that they did not breach any duty.
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.