How an Executor of “The Will” Might Be Breaching His/Her Fiduciary Duty
The executor of a Texas will is the person chosen by the deceased to administrate the provisions of the will of his/her estate. The executor must be at least eighteen years old and have no prior felony convictions. Executors are usually family members, accountants, or lawyers. The duties of the executor start at the time of death and finish when the last state and federal taxes, if any, are paid. And the estate is closed or otherwise fully disposed of. Executor responsibilities include accounting of assets in the estate, payment of estate liens and debts, and final distribution of assets to the beneficiaries.
An executor has legal fiduciary responsibilities and must act with utmost honesty, impartiality, and scrupulousness on behalf of the deceased and the estate’s beneficiaries. Rational decisions must be made; and the executor must overcome emotion caused by loss and adhere to the terms of the will.
But what if the Executor decides to put his/her own interests ahead of the estate’s beneficiaries or neglects to carry out his/her responsibilities. Has the Executor of the will breached their fiduciary duty? Some serious examples of an executor’s breach of fiduciary duty include:
- Mismanaging estate assets
- Misappropriating estate assets
- Hiding estate assets
- Failing to notify beneficiaries of their interests
- Using estate assets for the executor’s own benefit
- Unnecessarily delaying distributions to beneficiaries
- Paying themselves large and exorbitant, unearned fees
- Selling estate assets for an inappropriate price
- Ignoring important probate deadlines
- Failing to collect money owed to the estate
If an executor has breached his/her fiduciary duty in an estate where you are a beneficiary, this is a very serious issue that needs immediate attention. If you, as a beneficiary, feel that your interest in an estate is being compromised by your current executor, you should contact a Professional Probate Litigation Attorney immediately for help or the estate could experience serious consequences that will not only cause horrible problems between family and friends but also financial issues in the estate from possible fraud, theft of cash/property, or total disregard of all legal fiduciary responsibilities and duties.
Need Help? Give Us A Call!
The Nacol Law Firm P.C.
Probate Litigation Attorneys in Dallas TX
972-690-3333
Determining the Existence of a General Partnerships in Texas
General Partnerships in Texas are more common than people think. Individuals in the Dallas / Richardson area that form a business by oral agreement have unknowingly created a general partnership. General partnerships are common when two aspiring entrepreneurs orally decide to start a business and proceed without proper guidance from a lawyer.
The Court will look at five major factors to determine the existence of a general partnership. These factors are:
- Did two or more people express an intent to be partners?
- Did two or more people participate or have the right to participate in control of the existing business?
- Did two or more people agree to share losses or liability for claims by third parties against the business?
- Did two or more people agree to contribute money or other property to the business?
- two or more people share profits of the business?
If the answer is yes to any of these factors there may be a basis for a general partnership. The Court will make the determination of a general partnership on a case by case basis but at least one of the abovementioned factors must be present for the Court to determine that a general partnership exists.
Certain factors will not be considered when a Judge decides to whether a general partnership exists or not. These factors are:
- The right of two or more people to share profits as it pertains to:
a. repayment of a debt;
b. wages or compensation to an employee;
c. payment of rent or interest on a car loan:
d. payment of consideration for the sale of a business or other property: - The existence of joint or common tenancies; and
- Sharing or possession of a right to share gross receipts.
If circumstances dictate that a general partnership is created between two individuals then certain fiduciary duties and obligations arise between the partners. All partners have a fiduciary duty loyalty and care to the partnership and each other. A breach of this fiduciary duty may give rise to actual, punitive damages, and lost profits.
If you believe that through certain actions you have created a general partnership with a third-party. Please contact Nacol Law Firm to aid you in creating a business entity that will safe-guard your assets and protect you from liability.
Julian Nacol, Attorney
Nacol Law Firm, PC
(972) 690-3333
Divorce Litigation : High Asset Divorces
High Assets Divorces in Texas can be painstaking and involve substantial time and money to properly litigate an individual’s case.
1. Original Petition and Temporary Orders
Single most important event for leverage is who files their Divorce Petition first. If you file first you are a Petitioner. A Petitioner receives a crucial benefit in litigation. A petitioner is afforded the opportunity to talk first and last in litigation, sets the tempo of the divorce, and creates the narrative of the litigation. Being a Petitioner is invaluable, thus if you have decided to file you should look to file first.
Temporary Orders are usually, absent emergency relief, the first hearing the Court will have in the case. At temporary orders the Judge will likely attempt to place a Band-Aid on all assets to insure there is not wasting of assets, custody and access of the children are determined, and payments remain the same of any separate or community property assets. Temporary spousal maintenance, exclusive use of property, and injunctions are granted at this hearing. With High Assets this hearing is pivotal in determining how litigation will continue in the future. Every Court is different but multiple additional temporary order may be filed or clarification motions.
2. Discovery Phase and Experts
The discovery phase may be cumbersome and painful. Discovery consists of multiple written questions. These include production questions (asking for documentation), interrogatories (questions require a written notarized response), admission (admit or deny questions), depositions (typically 6 hour cross examination in front of court reporter at an attorney’s office), and inventory and appraisal (sworn list of assets and values of each asset). These process are usually expensive but necessary to prove the amount of the marital estate and the characterization of property.
Experts are also employed at this stage. They are costly but necessary to prove tracing, value of fraud, or overall value of the business. These issue are likely contested, thus the battle of experts continue until the final hearing.
3. Depositions
A deposition is a formal question-and-answer session used in divorce cases to gather information under oath before trial. It typically takes place in a lawyer’s office, where one spouse (the deponent) answers questions from the opposing attorney while a court reporter records everything. The purpose of a deposition is to uncover facts, clarify disputes, and assess how a witness may testify in court. While it doesn’t happen in a courtroom, the statements made during a deposition carry legal weight and can be used as evidence later.
In high-asset divorces, depositions become even more critical because of the complex financial issues involved. Attorneys may ask detailed questions about business ownership, real estate holdings, investments, hidden assets, trusts, and even potential misuse of marital funds. If one spouse suspects the other of concealing wealth, forensic accountants or financial experts may analyze records and testify about discrepancies. The opposing attorney may also scrutinize spending habits, tax returns, and financial disclosures to ensure full transparency.
Because high-asset divorces often involve prenuptial agreements, inheritance disputes, or business valuations, preparation is crucial. A well-prepared spouse will work closely with their attorney to review financial documents and anticipate tough questions. While depositions can feel intense, remaining truthful, composed, and strategic can help protect one’s financial interests and ensure a fair resolution.
4. Mediation
Meditation may occur in the middle or toward the end of the litigation process. A good mediator may range from $2,000.00 to $3,500.00 per side. The mediation process can be difficult and last from a half to more than a full day. Some mediations go for 14 to 15 hours to obtain settlement. Though this is expensive it is still less costly than going to final trial and many outcomes may be obtain by agreement to which a Judge cannot order. The flexibility of mediation makes this process less painful and costly than attending final trial.
5. Final Trial before the Court or Jury
Final trial may be performed solely by a Judge or a Jury of 12 peers. Only 10 of 12 Jury members are needed to find in favor of either party. A Jury trial is more expensive, takes more time to prepare, and may be more risky depending on the County. A trial before the Judge is cheaper and may simplify many matters. It is important to know for every 1 hour in Cout it takes more or less 4 hours to prepare.
A jury trial with a minimum of 2 experts and multiple other fact witness should take anywhere from 4 to 7 days. A trial before the Judge for a similar case may take 2-4 days, depending how the judge runs the Court.
There are many trials and tribulations an individual will have to surpass in the Court system if they are getting a divorce and the marriage contained with high assets. It will likely be costly, painful, but necessary. Many other factors such as summary judgements or motions to exclude experts, witnesses, or exhibits may increase fees. It is important to be confident with your attorney and find a firm that has experience with higher assets cases to ensure the flow and strategy of the litigation fulfills your goals.
High Asset Divorce Attorneys in Dallas Texas
Nacol Law Firm P.C.
(972) 690-3333
HOA Litigation in Texas
Texas Home Owner Associations ( HOA ) : Are You in For Problems?
A HOA has the power to make every neighbor’s’ life a little easier by establishing restrictions that keep the neighborhood clean, safe, and accountable.
But certain issues , depending on the by-laws of your HOA, such as unjustified forced foreclosures, failure to repair plumbing or foundations, trying to force you to construct or build a fence on your separate property are worth seeking legal advice. An experienced attorney is needed if you are to take on a Texas Home Owner’s Association. Many HOA by-laws are open to interpretation regarding what a Texas HOA must repair and what is not responsible for under the HOA by-laws. To battle a strong HOA organization it takes an experienced real estate lawyer and if you have been a victim of HOA oppression seek an experienced lawyer immediately.
Julian Nacol
Dallas TX Attorney
Nacol Law Firm P.C.
(972) 690-3333
The Duties Of An Executor of A Texas Will
The executor (female: executrix) is the person appointed in the will of a decedent, to administer the decedent’s estate. The Executors’ main duty is to administer the estate of the decedent, according to the terms of the will unless otherwise directed or permitted by the court.
The executor must be eighteen years older and have no prior felony convictions. Executors are usually family members or friends, accountants or lawyers. The duties of the executor start at the time of death and finish when the last state and federal taxes are paid and the estate is closed or otherwise fully disposed.
Executor responsibilities include:
-
Location and valuation of assets in the decedent’s estate
-
Preparation of an inventory of the estate’s assets
-
Payment of estate liens and debts
-
Paying administration expenses
-
Paying taxes owed by the decedent or by the estate (including tax returns)
-
Final distribution of assets to the beneficiaries after all debts, expenses, and taxes are paid.
Final distribution of the assets will be distributed according to the will. If there was no will, distribution will go according to the law of interstate succession.
An executor has legal fiduciary responsibilities and must act with utmost honesty, impartiality, and scrupulousness on behalf of the deceased and the estate’s beneficiaries. Rational decisions must be made; and the executor must overcome emotion caused by loss and adhere to the terms of the will.
Some questions the potential executor should ask before accepting the position?
-
What type of property and debts does the deceased own or owe? What type of property is it? Real estate, personal, mineral, oil or gas rights or other types of property?
-
Where is the property located? Is all the property in Texas or are some estate assets in other states?
-
Did the deceased own a business that will have to be assumed by the executor to continue operations until the probate is settled and where is the business located? The executor will need to know about all aspects of the business operations and obligations.
-
Do you have an accountant, attorney or other professional advisor who can assist you in handling the probate transition in a timely and expedient fashion?
-
What are the deceased debts? Is the estate solvent or insolvent? Are there any outstanding lawsuits or potential problems? Any other property disputes?
-
Were children born to or adopted by Decedent after the will was made?
-
Any potential family disputes?
-
Where is the will located? If the maker of the will is living, should any changes be made to the will before the person dies? If the executor decides to accept the position, does the will need to be changed on acceptance to appoint the executor of choice.
-
What are the basics of administering the executor’s position and duties while administrating of the estate of the deceased?
-
Collection and management of the assets
-
Paying all taxes, debts, and expenses of the estate
-
Distribution of remaining assets to the beneficiaries of the estate in strict accordance with the will terms.
The executor’s position can be very complicated and time consuming and you should have knowledge of all financial and legal aspects of probating an estate. An experienced employee, accountant or attorney can help you with this important task. If not sure, ask for help! You have a serious and legally accountable responsibility to the estate and its beneficiaries.
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm
OUR BLOGS
SEARCH
JOIN OUR NETWORK

Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization