In any will or trust, there will be a person who has control over managing or administering the trust or estate. Wills designate personal representatives, called an Executor, to carry out the terms of the Will and administer the Estate.  A trust agreement appoints a Trustee with a similar role.  This person has legal obligations, called fiduciary duties, owed to those who have an interest in the estate or trust. These interested parties may bring litigation if they believe their rights are being violated or assets are not being properly managed. Estate and trust litigation typically involves complex family relationships and can be a very emotional process. An experienced estate litigation attorney can help you navigate these matters, advise you as to your rights as a beneficiary or interested party, provide guidance as to whether litigation can be avoided, and alleviate some of the stress and uncertainty that tend to accompany these complex situations.

Common Estate Disputes

Because there are many players involved with differing interests in settling an estate, including executors, trustees, creditors, third parties in possession of assets, and beneficiaries, conflicts or disputes may arise at various points in the process. Any one of these parties may have a legal dispute that delays or creates an impediment to finalizing an estate.  Litigation may arise if a person or charity had expectations of receiving money or property that doesn’t materialize or believes the Decedent’s estate plan deviates from his or her intentions.

Some of the most common estate disputes also include challenges to:

  • The legal validity of a will or trust if someone suspects the testator (i.e. person who wrote the will) or grantor (i.e. the person who established the trust) did not have the legal capacity to make decisions or was under the undue influence of someone else;
  • The management of the estate or trust if the beneficiaries believe the executor or trustee was not appropriately managing the assets;
  • The division of the estate’s assets if a beneficiary believes they are not receiving the share of the estate that was outlined in the will or that they are entitled to under Texas intestacy laws.

Additionally, litigation may arise if an executor denies a creditor’s claim and refuses to pay the debt. The creditor may have the legal right to sue the estate in order to prove they are owed compensation for a legitimate debt claim.

Serving as an executor/administrator or trustee is a decision that should not be taken lightly. These positions come with specific duties that necessitate guidance from legal counsel, as there are consequences if those duties are breached. IF the executor/administrator or trustee has been accused of wrongdoing, the fiduciary should prepare to a legal defense and remedy the accusation as quickly as possible. Without a proper defense, the fiduciary risks personal liability with damages being assessed from his/her own pocket.

Regardless of the circumstances of the dispute, you should always consult with an estate litigation attorney early in the process, both to avoid litigation if possible and to put you in a better position should your case go to trial.

Estate Litigation

Numerous scenarios arise in which an estate gets wrapped up in litigation, especially when there is a large amount of money at stake.

When a Decedent dies leaving a will, either an executor or administrator may be appointed to settle the estate. This person owes certain duties to the interested parties, including creditors and beneficiaries. If any interested party believes the executor or administrator is acting improperly in the course of administering the Decedent’s estate, litigation may be necessary to suspend or stop the executor or administrator’s control over the estate, and to seek court intervention as to the alleged wrongdoing.

Additionally, if a trust has been established and funded, a trustee is appointed to manage the trust and trust assets. This person is required to act in the best interests of the trust and the beneficiaries affected by the terms of the trust. When someone agrees to serve as a trustee, the trustee accepts and takes on fiduciary responsibilities. A few of those responsibilities include:

  • Administering the trust solely in the interest of the beneficiaries
  • Making distributions according to trust terms as not all beneficiaries are created equal
  • Maintaining insurance for trust property
  • Developing investment strategies and overseeing the investments
  • Reporting to beneficiaries and maintaining books and records
  • Handling tax matters
  • Not commingling the estate assets with their individual assets

Additional responsibilities may exist depending on the purpose of the trust and its specific terms. While the duties of properly administering a trust rest on the trustee, a trustee may and should seek advice from professional advisors, including but not limited to investment professionals, tax professionals, and legal professionals.  A trustee can be financially responsible if found to have breached obligations to the beneficiaries.

If a trustee is acting against the best interests of the beneficiaries or violating any terms of the trust, litigation is one of the primary methods to seek recourse. The outcome of litigation can include, among other things, payment of damages from the trustee’s individual funds or removal/replacement of the trustee.

How an estate or trust litigation attorney can help navigate the above type of disputes:

  • Provide advice to either the beneficiary or the fiduciary to navigate and understand the estate planning documents and the rights and/or obligations under the documents
  • If you are a beneficiary, outline the assets you are entitled to receive and a timeline for when distributions should be made, and advise if there are any issues that you should be aware of regarding the settling of the estate or the management of the trust
  • If you are an executor/administrator or trustee, advise you on the proper actions to take to ensure that you are following your fiduciary duties and defend you if an party pursues litigation against you
  • If a will has conflicting or confusing terms, a party may ask the court to clarify or modify ambiguous language

Contesting the Appointment of an Executor Named in a Will

An individual, bank or trust company may be named as an executor in a will. Oftentimes, estate plans include the appointment of co-executors to act jointly in administering an estate. An interested party can contest the appointment of an executor of an estate or challenge the validity of the will in probate court.

There are multiple grounds for contesting the appointment of an executor although named in a will. A court may find that a named executor is not qualified to serve if the named executor is unfit to serve in the role, has a potential conflict or has an adverse interest, or has been convicted of a felony. This is not a question of the validity of the will itself, but rather of the competency of the potential executor to perform the duties required. To do this, an experienced estate litigation attorney can walk you through the steps of how to proceed in probate court once the person applying to be appointed executor files the will for probate or how to defend against a contest challenging qualification.

Grounds for Removing an Executor of an Estate

Reasonable grounds to have an executor removed include:

  • Flagrant misconduct: this occurs if an executor has mismanaged the estate in a drastic manner, such as theft from the estate
  • Failure to perform duties
  • Conflicts of interest: this is common when an executor is also a spouse or beneficiary and controls how assets are characterized or has rights by law that conflict with the terms of the will
  • Incapacity: an executor may become incapable of performing the tasks necessary to settle the estate, either physically or mentally. A court may decide a diagnosis, such as dementia, justifies the executor to be removed. According the Texas law, incapacity also includes imprisonment.

Essentially, must prove that the executor engaged in some wrongdoing or some change in circumstances occurred that makes the executor legally unfit to serve as executor.  Personal disagreements and family discord, alone, may not render an executor unsuitable to carry out his or her duties.

Contact the Houston Estate Litigation Lawyers at Nikki Davis for Assistance Resolving Estate Disputes

Attorney Nikki Davis is an experienced Houston estate and trust litigation attorney who can help guide you through the process of litigation. We provide commonsense solutions and stand ready to litigate aggressively on your behalf. You should engage an attorney as early in the process as possible to ensure your interests are protected. You can call us today at (713) 335-9585 or message us online to schedule your initial consultation.

Frequently Asked Questions

Can the executor of a will take everything?

Although an executor has the duty and power to take control of all assets in an estate, an executor only holds the assets constructively for the benefit of the beneficiaries.  An executor is not personally entitled to assets listed in the will simply based on the status as executor. Executors are legally bound to distribute assets as directed in the will by the decedent. However, if an executor is also named as the sole beneficiary under the will, then the executor, individually, has a right to all assets, subject to debts and taxes of the estate. Whether named as a beneficiary, a will may provide that an executor is entitled to take a fee for administering the estate, which is payable from estate funds.

The executor cannot change any part of the will without a family settlement agreement or court order.

When do I need a Trust Attorney?

Both trustees and beneficiaries may need an attorney if a dispute arises about the management and distribution of a trust’s assets. A trustee should be proactive in seeking counsel in carrying out his or her duties to prevent breaching obligations that may be unknown to a trustee, as not knowing or understanding ones duties or not understanding a trust document is not a defense to a lawsuit against a trustee. Beneficiaries may need legal help to protect their interests or when they suspect a trustee has mismanaged the trust.

Can a beneficiary be removed from a will?

A person that makes a will is called a testator. During a testator’s lifetime, as long as the testator has legal capacity, he or she has the right to amend, change, and revoke a will can be amended at any time. A named beneficiary does not have a legal right to be notified of changes to a will. Disinheriting a loved one can be a difficult decision and should be done under the supervision of and drafted by an experienced attorney, since the smallest of mistakes can render your revisions ineffective. Only the testator has the power to make any changes to the will.

Can a co-executor be removed?

Like an executor, a co-executor can be removed by the court if the judge is offered sufficient evidence that the co-executor has breached his or her fiduciary duty or is incompetent, among other reasons. Such occurrences can include failure to comply with the will’s terms, mismanaging or neglecting estate assets, or engaging in self-dealing. Additionally, if the co-executor becomes incapacitated or has a conflict of interest, the court may see fit to remove the co-executor from the position. The will may direct that a successor executor replaces the removed co-executor or that the remaining co-executor acts alone.