Estate Remedies and Legal Procedures Overview

REMEDIES - Estates - Trusts - Guardianships - Ancillaries

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Em ergencies: Em ergencies: - Temp Admin TEC Ch. 452 Hearing not required by the statute, but did you follow the statute or is it contested? Limited administration - Temp Restraining Order TRCP 680, et al Ex parte allowed, but see TRCP 680 and the local rules Fourteen day max unless extension Movement for dissolution or modification Hearing as soon as possible

- Temp Injunction TRCP 681, et al BURDEN OF PROOF read it and read it again (1) COA against the Defendant (2) probable right to relief (3) probable, imminent, irreparable injury, loss, or damage Remedy status quo unless you meet a higher burden Order must be specific and include certain requirements or may be void or not valid to hold any violator in contempt - Receiver TRCP 695 and CPRC Ch. 64 - Sequestration TRCP 696, et al and CPRC Ch. 62

Estate Rem edies: Estate Rem edies: - Muniment, administration, SEA - Open safety deposit box TEC 151.001-005 Must have a representative of the court - Exempt Property and Allowances - DA Homestead (not generally a fee simple deed) TEC 353.051 Life Estate rights and duties Personal Property TEC 353.051 Tex. Prop. Code 42.002(a) Allowance in lieu of TEC 353.053 Title TEC 353.153 Family Allowance TEC 353.101 - from the community estate and may force sale TEC 451.001 no administration

Estate Rem edies: Estate Rem edies: - Claims TEC Ch. 355 Administrator has a trap see TEC 355.201(b) Claimants trap on limitations Foreclosure - Partial distibutions Refunding bond may be required TEC 360.002 - Partition - Accounting - Heirs or IA Bond - Compel settlement

Es Estate tate Rem edies: Rem edies: - Compensation of Personal Representative TEC 352.002 5% of receipts and payments TEC 352.003 alternate if business or unreasonably low TEC 352.004 can deny compensation for not managing prudently or removal TEC 352.053 expense charges entered on claim docket - Costs Against Personal Representative TEC 351.003 allows liability against PR and surety for costs of removal and attorneys fees for removal or compelling PR to comply with statutory duty - Judge s Bond TEC 351.354 gross negligence of judge s duty TEC 401.007 absent fraud/collusion no liability if IA created by agreement - Summary Proceedings for Certain Small Estates TEC Ch. 354 quicker?

Rem oval of Personal Representative Rem oval of Personal Representative - Without Notice TEC 361.051 and 404.003 DA has misapplied, embezzled, or removed supported by C&C evidence under oath IA - sufficient grounds appear to support a belief - With notice TEC 361.052 and 404.0035 Trial - Due Process Applies Burden of proof DA sufficient grounds appear to support a belief IE and DA - proved to have been guilty of gross misconduct/management -Attorneys Fees and Expenses -Compensation - Successors

Estate Outlying Rem edies: Estate Outlying Rem edies: - Administration of Community Property TEC Ch. 453 Creates a constructive trust Administration necessary? TEC 453.002 - .003 Liability only if gross negligence or bad faith - Estate of Persons Presumed Dead - TEC Ch. 454 Circumstantial evidence to prove dead Direct evidence to prove living - Ancillary probates - TEC Ch 501-503 - IOLTA representative - TEC Ch 456

Trust Rem edies: Trust Rem edies: - Modification and Termination - Additional property TPC 112.006 - Accounting TPC 113.151 - Removal of Trustee TPC 13.082 Material violation or attempt AND results in material financial loss Court finds other cause for removal. - Successor May be liable for predecessor breach TPC 114.002 - Distribution

Rem edies for Breach of Trust Rem edies for Breach of Trust - TPC 114.008 (a) that has occurred or might occur: compel to perform enjoin compel redress account receiver suspend trustee remove per TPC 113.082 impact compensation void trustee act lien constructive trust trace and recover any other appropriate relief. any other appropriate relief.

Estate and Trust Rem edies Estate and Trust Rem edies Attorneys Fees Attorneys Fees - Personal Representative TEC 352.051 reasonable and necessary for general collection, management, and preservation functions TEC 352.052 will contest in good faith and with just cause (depending on interest, need not be successful) - Independent Admin TEC 404.0037(a) shall be allowed to IE if defending removal in good faith regardless of success TEC 404.0037(b) may be allowed to movant in removal action - Trustee TPC 113.151 - may be allowed if successful in accounting suit - Statutory - Equity

Exculpation of Exculpation of Liability Liability TPC 114.007 - Clauses are enforceable unless: bad faith intentional reckless indifference to a beneficiary s interest product of abuse - Can get disgorgement of profits regardless if an enforceable clause - Duty of trustee still exists, but if a simple negligence breach, damages may not be obtainable

Litigation Causes of Action *Breach of Fiduciary Duty Negligence and Gross Negligence Fraud Conversion - Will and Trust Contests Capacity Undue Influence Fraud - Suitability Contests Unsuitable Disqualified - Other Ancillaries Declaratory Judgments Title Disputes Conversion Actions surviving death of decedent

Damages - Direct - Consequential - Interest - Punitive and Exemplary Sanctions v. Contempt

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