Some fortunate teens will receive inheritances from grandparents and may have legal rights over that property at the time of attaining age 18. Other teens may have nothing more than a pet, a car or a music collection. However, specifying what they want done with the pet and to whom they want to receive their items of personal property can be important personal decisions.

Finally, young adults are often receptive to parental suggestions that reinforce their notion of independence. Accordingly, parents can suggest, as circumstances merit, that their young adult children open a bank account in their name, meet with a stockbroker or financial planner, and meet with an attorney to prepare a will.

Upon applying for a guardianship, the court will closely examine the child’s prior management of his parent’s funds to determine whether or not the child is qualified to serve as guardian. Specifically, the court will examine how the child has managed his or her parent’s funds before the guardianship is established. It is critical, therefore, for the child to have taken all appropriate steps in managing his or her parent’s funds while accessing the account. For example, the child should never co-mingle his or her own funds with those of his parents. In addition, the child should make sure that the parent’s funds are used only for the parent’s benefit; not the child’s. Many guardianship disputes arise over “gifts” the child has made from the parent’s funds, loans, or other transfers. Keeping the other siblings informed on a regular basis about the management of the parent’s funds can often deter negative accusations that might derail the child’s guardianship application.

Bad Faith, Intent and Reckless Indifference

Section 114.007 (A) of the Texas Property Code (the Texas Trust Code is contained within the Texas Property Code) states that an exculpatory provision which would attempt to relieve a Trustee of liability for breach of trust is unenforceable to the extent it relieves a Trustee from liability for breaches of trust committed in bad faith, intentionally, or with reckless indifference to the interest of a beneficiary.

While the settlor of a trust can provide for a reduction of possible future liability for the Trustee, there are certain acts which the Trustee, regardless of the language in the trust agreement, cannot undertake without incurring legal liability. Accordingly, the rights of the beneficiaries will be protected against Trustees who take actions as Trustees in bad faith, intentionally, or with reckless indifference to the interests of a beneficiary.

1.         The executor fails to timely file an inventory of the estate;

2.         Sufficient grounds appear to support belief that the executor has misapplied or embezzled, or that he is about to misapply or embezzle all or any part of the estate;

3.         The executor fails to make an accounting which is required by law to be made;

4.         The executor fails to timely file the notice to a governmental or charitable organization named in a will as required by Section 128A of the Probate Code;

5.         The executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of estate duties;

6.         The executor becomes an incapacitated person or is sentenced to the penitentiary or for any other cause becomes legally incapacitated from property performing his fiduciary duty.

Some examples of when the trust code will allow a court to “modify a trust” are:

1. When circumstances that were not known to or anticipated by the settlor (the person originally creating the trust, also referred to as the grantor or trustor) of the trust and when the requested order will further the purposes of the trust;
2. If continuing the trust is not necessary to achieve any clear purpose of the trust provided all the beneficiaries consent;
3. A modification is necessary to achieve certain tax objectives and is not otherwise contrary to the settlor’s intention;
4. Whenever the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill; and
5. When a modification of certain terms of the trust is necessary or appropriate to avoid impairment of the trust administration.

Texas Probate Code Section 95A provides that a written will of a testator (the person who died) who did not primarily reside in Texas at the time of his or her death, may be admitted to probate upon proof that it stands probated or established in any of the other 49 States, territories of the U.S.A., the District of Columbia, or any foreign nation. Texas Probate Code §95B states that if the foreign will has been admitted to probate in another state in which the testator is domiciled at the time of his or her death, then the application in Texas need only state that probate is requested on the basis of the authenticated copy of the foreign proceedings in which the will was probated. No notice is generally required. However, if the foreign will has been admitted to probate in a jurisdiction other than the domicile of the testator at the time of his or her death, the application for probate shall contain all the information required in an application for the probate of a Texas will, and shall also set out the name and address of each devisee (beneficiary) and each person who will be entitled to a portion of the estate as an heir in the absence of a will. Citations must be issued and served on each such devisee and heir.

If the testator were to leave him, as an example, $15,000.00, then the son would have $15,000.00 at risk and may be far less likely to bring a legal challenge to the will because the no contest clause would state that anyone who challenges the will loses any gift otherwise made to that challenging person. Accordingly, it is unwise to think that a forfeiture clause will have any real effect in preventing a contest if the person bringing the contest has nothing to lose. Additionally, there are methods by which the spouse of the disinherited heir could bring a challenge and possibly not trigger the forfeiture clause. Accordingly, the most effective no contest clauses are those which are carefully drafted in light of the testator’s family and relevant circumstances.

It is noted that this Section of the Probate Code does not impose a requirement that all wills be submitted for probate. Instead, the statute’s primary concern is to remedy suppression of a will by an individual in possession of same.

The requirement of “sound mind” is not specified in the Texas Probate Code. Instead, Texas Courts have determined that the “sound mind” requirement with regard to whether a person has “testamentary capacity” is as follows: The Testator (the person making a will) has sufficient mental ability, at the time of the execution of the will if he or she:

• 1. Understands the business in which is engaged;
• 2. Understands the effect of making the will;
• 3. Understands the general nature and extent of his property;
• 4. Knows his next of kin and the natural objects of his bounty; and
• 5. Has sufficient memory to assimilate the elements of the business to be transacted, to hold those elements long enough to receive their obvious relation to each other, and the form of reasonable judgment as to them.

All five as set out above are required in order to prove that a person was “of sound mind” when the will was signed.

Answer: We receive calls from people in situations like yours on a regular basis. One of the services we provide to out of state (or out of town) clients such as you, is to monitor the administration of their parent’s estate. Specifically, we contact the attorney handling the estate here locally and provide them with written notice of our representation. We tell them that we want to receive copies of various documents and pleadings pertaining to the administration of the estate.

By taking this action, we let the executor know that his or her actions are being monitored and we also are kept apprised of the status of the estate as the administration progresses. In the event there is a problem with some aspect of the estate, you are more likely to be advised of it sooner than you would be otherwise.

If you have a Probate Law question that you would like answered, please submit it via e-mail to or use our online Contact Form.