Facts In a Texas case out of the Houston Court of Appeals in 2016, a will had given a certain piece of land to several of the decedent’s children share and share alike. The will appointed one of the children as the...Read More
Power of Attorney A power of attorney in Texas creates a fiduciary duty between the person who holds the power (agent) and the person who gives it (principal.) The agent owes his principal a high duty of good faith, fair...Read More
What is an arbitration clause The Supreme Court of Texas upheld an arbitration clause in a trust and the same reasoning may apply to wills although the court has not ruled on this question where a will was involved. Arbitration...Read More
Intentional or Negligence Acts 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...Read More
Elder abuse is increasing, often at the hands of those closest. In an article in the Arizona Daily Star by Patrick McNamara, which was published on their website, tucson.com, the paper reported that law enforcement is seeing an...Read More
Failure To Follow An Order As with most legal questions, it depends. When a judge orders someone to do something and that person doesn’t do it, the judge can hold him in contempt and put him in jail. Failure To Pay A Debt...Read More
The Trust The Dallas Court of Appeals in a 2014 case had to determine if the Trustors use of the term “request” in his Texas trust meant the parties “must.” The case involved an arbitration clause in the...Read More
The Austin Court of Appeals upheld a sentence of 25 years given to a man who abused a power of attorney. The man was the former grandson-in-law of the elderly lady who gave him the power of attorney. Using the power, he...Read More
No, says the Dallas Court of Appeals. The court stated that under Texas law, spendthrift trusts are trusts with language prohibiting the voluntary or involuntary alienation of the beneficial interest. A spendthrift trust...Read More
Who owns the propertyOn occasion, an attorney contesting a will will run across a Deed to 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 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 conveyanceWhen 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. A 2016 case where there is a Deed to Trustee When There is No Trust shows the complications over deeds such as this.
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...Read More
When someone is found to have breached a duty, a large judgment can be rendered against them. If they can’t afford to pay the judgment, they can file for bankruptcy and ask that the judgment be discharged meaning that they...Read More
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Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle litigation cases related to inheritance disputes including will contest, related property disputes and associated torts throughout Texas. Our principal office is in Tyler, Texas. Contact Robert