How an Executor of “The Will” Might Be Breaching His/Her Fiduciary Duty
The executor of a Texas will is the person chosen by the deceased to administrate the provisions of the will of his/her estate. The executor must be at least eighteen years old and have no prior felony convictions. Executors are usually family members, accountants, or lawyers. The duties of the executor start at the time of death and finish when the last state and federal taxes, if any, are paid. And the estate is closed or otherwise fully disposed of. Executor responsibilities include accounting of assets in the estate, payment of estate liens and debts, and final distribution of assets to the beneficiaries.
An executor has legal fiduciary responsibilities and must act with utmost honesty, impartiality, and scrupulousness on behalf of the deceased and the estate’s beneficiaries. Rational decisions must be made; and the executor must overcome emotion caused by loss and adhere to the terms of the will.
But what if the Executor decides to put his/her own interests ahead of the estate’s beneficiaries or neglects to carry out his/her responsibilities. Has the Executor of the will breached their fiduciary duty? Some serious examples of an executor’s breach of fiduciary duty include:
- Mismanaging estate assets
- Misappropriating estate assets
- Hiding estate assets
- Failing to notify beneficiaries of their interests
- Using estate assets for the executor’s own benefit
- Unnecessarily delaying distributions to beneficiaries
- Paying themselves large and exorbitant, unearned fees
- Selling estate assets for an inappropriate price
- Ignoring important probate deadlines
- Failing to collect money owed to the estate
If an executor has breached his/her fiduciary duty in an estate where you are a beneficiary, this is a very serious issue that needs immediate attention. If you, as a beneficiary, feel that your interest in an estate is being compromised by your current executor, you should contact a Professional Probate Litigation Attorney immediately for help or the estate could experience serious consequences that will not only cause horrible problems between family and friends but also financial issues in the estate from possible fraud, theft of cash/property, or total disregard of all legal fiduciary responsibilities and duties.
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The Nacol Law Firm P.C.
Probate Litigation Attorneys in Dallas TX
972-690-3333
Preventing Custodial Parent From Relocating Children Out of State
Mom and Dad are divorcing or have been divorced and are now sharing joint custody of their children in the same city in Texas. One parent receives a letter from the other parent’s attorney requesting that this parent be allowed to relocate the children to another state so he/she may take a better job position with another company! This is a dilemma no parent ever wants to experience! Child Custody cases involving interstate relocation jurisdiction issues cause much heartache and are costly legal battles.
What can a Parent do to protect themselves from children being relocated away from the non-moving parent to another state without her/his consent? How may this affect the parent’s relationship with the children?
The Texas Family Code 153.002 Best Interest of Child states “The best interest of the child shall always be the primary consideration of the court in determining the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
The Texas Family code does not elaborate on the specific requirement for modification in the residency-restriction context, and there are no specific statutes governing residency restrictions or their removal for purposes of relocation. Texas Courts have no statutory standards to apply to this context.
The Texas Legislature has provided Texas Family Code 153.001, a basic framework on their public policy for all suits affecting the parent-child relationship:
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The public policy of this state is to:
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Assure the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
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Provide a safe, stable, and nonviolent environment for the child;
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Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may rule on custody issues if the Child:
*Has continually lived in that state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
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Allowing or not allowing the move.
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Order of psychological evaluations or social studies of family members
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Modification of custody and adjusting of child’s time spent with parents
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Adjusting child support
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Order of mediation to settle dispute
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Allocating transportation costs
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Order opposing parties to provide all information on child’s addresses and telephone #
Help to Prevent Your Child’s Relocation in a Texas Court by Preparing Your Case!
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Does the intended relocation interfere with the visitation rights of the non- moving parent?
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The effect on visitation and communication with the non-moving parent to maintain a full and continuous relationship with the child
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How will this move affect extended family relationships living in the child’s current location?
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Are there bad faith motives evident in the relocating parent?
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Can the non-moving parent relocate to be close to the child? If not, what type of separation hardship would the child have?
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The relocating parent’s desire to accommodate a new job, spouse, or other criteria above the parent-child relationship. A Parent’s personal desire for move rather than need to move?
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Is there a significant degree of economic, emotional or education enhancement for the relocating parent and child in this move?
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Any violation of an order or prior notice of the intended move or a temporary restraining order
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Are Special Needs/ Talents accommodated for the child in this move?
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Fear of child and high cost of travel expenses for non-moving parent or child to visit each other to be able to continue parent- child relationship.
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What other Paramount Concerns would affect the child concerning the relocation from the non-moving parent?
At the Nacol Law Firm PC, we represent many parents trying to prevent their child from relocating to another city or state and having to experience “A Long Distance Parental Relationship” brought on by a better job or new life experience of the relocating parent! We work at persuading courts to apply the specific, narrow exceptions to these general rules in order to have child custody cases heard in the most convenient forum in which the most qualifying, honest evidence is available; cases where the child’s home state or other basic questions are clarified, and cases where a parent has the right in close proximity with their child regardless of other less important factors.
Breaking Up a For Profit Corporation
A For Profit Corporation can be a useful tool if utilized appropriately. One major problem with a For Profit Corporation is the lack of flexibility to dissolve the Corporation when a disagreement arises between the equity shareholders. If ownership in a For Profit Corporation consists of 50% – 50% split in equity then there may be issues down the road.
Many future circumstances may warrant a dissolution of the For Profit Corporation, such as a dispute on the direction of the business, the profitability of the business, or simply a disagreement regarding employment and management duties. When these disputes arise, it may make the For Profit Corporation untenable and impractical. This can be a problem if one owner of the company wishes to continue business as usual and the other owner wishes to dissolve the corporation.
When making the decision to enter into a For Profit Corporation and splitting equity within the Corporation at a 50/50 ratio please keep in mind a couple of things:
- It will be hard to dissolve the Corporation with a 50/50 split in equity;
- It will cost additional expenses to appoint a receiver to manage the company;
- It will cost additional expenses to retain a lawyer for the purpose of forcibly winding down a For Profit Corporation;
- It will be an uphill battle to dissolve a For Profit Corporation that creates jobs in the community because the policy of Texas Courts’ is to find any alternatives to a dissolution that may bring termination to many employees.
- It will be a complex and time consuming undertaking to dissolve a For Profit Corporation if both equity shareholders do not agree.
Prior to forming a For Profit Corporation, you should research all of your options. Many business organization can provide tax relief and flexibility without the rigidity of a For Profit Corporation. Please seek an experienced attorney when creating or amending any business organization and ask the pros and cons of all business entities.
Texas Home Owner Associations Given Limits by State Legislation
Texas legislation has limited the control that the home owners associations have when pursuing foreclosure. The restrictions that have been placed on home owners associations are aimed to help assist homeowners that are delinquent on their specific payments. The provisions enclosed within the legislation help the homeowners that are down on their luck in multiple ways.
1.) In order for a HOA to foreclose on a house they need a court order
2.) The foreclosure on a person’s home cannot commence until 60 days have lapsed after written notification
3.) The debt due can also be repaid by an alternate payment plan
The ability of the HOA to foreclose on an individual’s house is no longer absolute. New legislation provides for the HOA to lose its ability to foreclose on individual properties if 67% of the homeowners decide to rid this right of foreclosure from HOA power. All of these new stipulations have been ushered in to protect people from abuse by their own HOA. HOA is now more restricted in power and use of such power.
The HOA must maintain policies that require documentation of mortgages and outstanding payments. If the HOA has no policies instituted for document retention they cannot charge homeowners for the cost of retrieving the documentation individually. The HOA must allow for an annual meeting as well. If a demand for a meeting is not upheld by the HOA then a re-election of the board members can be initiated. The voting aspect of HOA has been revised as well. A homeowner may vote in proxy, by absentee ballot, or by an electronic ballet, however all ballets must be in writing and signed.
All of these rules have been implemented to help protect homeowners from HOA wrongful oppression. Foreclosures have been epidemic in Texas with HOA’s foreclosing on people’s properties without any or with inadequate warning for individuals to respond and protect themselves. These new laws help level the playing field and give homeowners’ safeguards against the wrongful whims or abuse of power of the HOA.
Children Born Outside of Marriage: Unknown Descendants that May Inherit
Creating a Will is extremely important for individuals that have a sizable estate in the Dallas and DFW metroplex. Time and time again, individuals refuse to properly prepare for death and do not see the proper preparation of a legal and valid will as a necessity.
When you refuse to prepare a Will, then your entire estate will pass through the intestate process. Intestate rules apply if: (1) there is no will, (2) the will does not completely dispose of the entire estate, or (3) there is a pretermitted child/adopted child born after the will’s execution.
In certain situations, a child born outside of a marriage may still claim inheritance rights per the rules of Intestate succession. Nonmarital children may establish inheritance rights from the alleged father if the presumption of paternity is proven in court. Paternity is presumed if one of the following elements are met per Tex. Fam. Code § 160.204:
- The child was born during (or within 300 days after) the marriage of the man and the child’s mother;
- During the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his; or
- The parties married after the Child’s birth and the man voluntarily asserted his paternity of the child in one of the following ways:
a) The assertion of paternity is in a record filed with the Bureau of Vital Statistics;
b) The man was voluntarily named as the Child’s father on the birth certificate; or
c) The man promised in a record to support the child as his own.In many cases a child that was born out of wedlock may still inherit from the father’s estate if the above mentioned actions can be proved. Depending on the estate, this ability to prove the presumption of paternity can have a great impact on the allocation of the estate’s assets.
Paternity may be rebutted, even if the presumption is proved by a preponderance of evidence, by a DNA test. DNA testing is the only option to rebut the presumption of paternity. Depending on the estate and the desires of all parties involved, a Judge may order that the body be dug up for a DNA sample of the deceased. This is rare, but the Court does have the authority.
It is important to remember that the Statute of Limitations to establish inheritance rights or the presumption of paternity begins at the date in which the father died. The statute of limitations is four years, which means any potential claim must be brought within four years of the individual’s death.
If you are a nonmarital child or born out of wedlock in the DFW area, you may still inherit as a matter of law. A will created prior to the birth of a nonmarital child will not cut off the child from his or her rightful inheritance. For situations like this, please contact Nacol Law Firm to acquire an experienced attorney to navigate through intestacy laws and probate.
Julian Nacol
Dallas Probate Attorney
Nacol Law Firm P.C.
tel: (972) 690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization