Find Out About Removal of Trustees, Breach of Duty in Probate or Inheritance Disputes
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 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 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 account.
the written accounting by the trustee must show:
- 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;
- 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;
- a listing of all property being administered, with an adequate description of each asset;
- the cash balance on hand in the name and location of the depository where the balance is kept; and
- all known liabilities owed by the trust.
Many times, people are beneficiaries of property that is being controlled by someone else but can't get any information about the status of the property. By making a written demand on the trustee to make an accounting, a person can force the trustee to account for the property and what he has done with it.
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 A fiduciary can be removed because of gross mismanagement.
In a recent case, an attorney was appointed as the Independent Executor of his great uncle's estate. He was not a beneficiary under the will. He hired himself to be the attorney for the estate. The will did not provide for the attorney to receive a fee for his services. The Inventory and Appraisement was filed over one year and seven months after he was appointed independent executor. The probate code requires the Inventory and Appraisement to be filed within 90 days. He sold two parcels of the estate's real property and paid himself nearly $100,000 as "compensation." Additional evidence showed that the attorney failed to pay property taxes or correct code compliance violations on the real estate after receiving notices from the city. Accordingly, the estate was charged penalties and the only remaining property in the estate was scheduled for foreclosure |
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 A fiduciary can be removed if he has a conflict of interest with the beneficiary.
In a recent case, two brothers owned a farm. Both had done extra work on the farm. One of the brothers died. The one that died had an ex-wife and two children. He left his property to his children. His will created a trust for them. He named his brother both as executor of the will and as the trustee of the trust. His brother was, therefore, a fiduciary under the will and under the trust. The wife asked the court to remove the brother as executor and as trustee. The trial court refused to remove him and |
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 A fiduciary owes the duty 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.
If the fiduciary violates his duty, he can be liable for the actual damages caused by his violation as well as exemplary or punitive damages. If you would like to talk to an estate planning attorney or a lawyer who is familiar with probate law to advise you about a breach of fiduciary duty, click on the "Contact Us" tab at the top of this page. |
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Wikipedia, describes a fiduciary's duty as:
The fiduciary duty is a legal relationship of confidence or trust between two or more parties, most commonly a fiduciary or trustee and a principal or beneficiary. One party, for example a corporate trust company or the trust department of a bank, holds a fiduciary relation or acts in a fiduciary capacity to another, such as one whose funds are entrusted to it for investment. In a fiduciary relation one person justifiably reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some
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