Brandy Baxter-Thompson

This article contains two Handbooks: Handbook for Independent Executors and Handbook for Trustees. These Handbooks are designed for lawyers to use as a guide in advising their clients as to their fiduciary duties when serving in these capacities. They do not cover every possible issue that can arise; that would take volumes and render any “handbook” unwieldy. Rather, these Handbooks are designed to cover the most common duties, responsibilities, and powers of an Independent Executor during the course of the administration of a solvent estate and of a Trustee during the administration of a trust.

This article provides the attorney with information pertaining to most issues arising when representing a surviving spouse in an estate.  The attorney will also find numerous practical forms to assist them.

Fiduciaries whether they are administrators, executors, guardians, or trustees, shoulder an immense responsibility when they take the oath and put on the cloak of fiduciary.  This paper will focus principally upon the statutory compensation to be paid to executors, administrators, guardians and trustees in Texas and will only briefly comment on the statutory compensation to be awarded to certain other “special representatives” or fiduciaries in probate cases such as community administrators, guardians or attorneys ad litem, probate receivers, ancillary personal representatives, or statutory custodians acting under various statutes of this state.  This paper also does not discuss any expenses or costs to which the personal representative might also be entitled to receive in an administration.

Powers of appointment are often used by estate planners in tax planning as well as to allow for flexibility to address future circumstances unforeseen at the time of their creation.  Some planners include these powers in trusts to permit decanting.    

Historically, powers of appointment have rarely been the subject of litigation. The sparse caselaw involving this device confirms this point.  However, the issue of a beneficiary’s standing to demand an accounting or sue a trustee if their interest is subject to a power of appointment has arisen more and more.  Other potential litigation issues include challenging the creation of a power of appointment (rarely litigated) and challenging the exercise of a power of appointment (more frequently litigated).  This article will address both the standing concerns as well as the potentially litigated topics of whether a power is created and whether it was properly exercised.   

A person’s “standing” to participate in probate proceedings can be challenged to exclude anyone not having a financial interest in the estate, or otherwise known as a “mere meddlesome intruder.”  Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 296 (1960). In a guardianship proceeding, the focus is on the best interests and welfare of the proposed ward and a person’s standing can be challenged on the basis of an adverse interest to the ward’s welfare and best interests.  See Estates Code §§ 1002.018, 1055.001.  Special procedures and requirements have developed by which to challenge a person’s standing in a guardianship or decedent’s estate. This concept of standing in probate proceedings differs from that found in other civil court actions.  It does not involve the court’s subject matter jurisdiction and may be waived if not challenged at the appropriate time.  This article will explore the concept of standing as it has evolved through court decisions relating to decedent’s estates and guardianships

Handbook for Trustees

This handbook is designed for lawyers to use as a guide in advising their clients as to their fiduciary duties when serving in these capacities, covering over the most common duties, responsibilities, and powers of a Trustee during the administration of a trust., Author / Presenter, Handbook for the Fiduciary, Advanced Estate Planning and Probate Seminar, State Bar of Texas, 2019

Handbook for Independent Executors

This handbook is designed for lawyers to use as a guide in advising their clients as to their fiduciary duties when serving in these capacities, covering over the most common duties, responsibilities, and powers of an Independent Executor during the course of the administration of a solvent estate., Author / Presenter, Handbook for the Fiduciary, Advanced Estate Planning and Probate Seminar, State Bar of Texas, 2019

Considerations When Choosing a Power of Attorney or Guardianship, Co-Author, Considerations When Choosing a Power of Attorney or Guardianship, Headnotes, Dallas Bar Association, 2013

Co-Author, Entitled “Preservation of Error in Offering and Excluding Evidence,” 2006, Co-Author, Preservation of Error in Offering and Excluding Evidence, 2006