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:
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Location and valuation of assets in the decedent’s estate
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Preparation of an inventory of the estate’s assets
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Payment of estate liens and debts
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Paying administration expenses
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Paying taxes owed by the decedent or by the estate (including tax returns)
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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?
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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?
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Where is the property located? Is all the property in Texas or are some estate assets in other states?
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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.
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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?
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What are the deceased debts? Is the estate solvent or insolvent? Are there any outstanding lawsuits or potential problems? Any other property disputes?
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Were children born to or adopted by Decedent after the will was made?
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Any potential family disputes?
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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.
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What are the basics of administering the executor’s position and duties while administrating of the estate of the deceased?
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Collection and management of the assets
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Paying all taxes, debts, and expenses of the estate
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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.
Breaking Up a For Profit Corporation
A For Profit Corporation can be a useful tool if utilized appropriately. One major problem with a For Profit Corporation is the lack of flexibility to dissolve the Corporation when a disagreement arises between the equity shareholders. If ownership in a For Profit Corporation consists of 50% – 50% split in equity then there may be issues down the road.
Many future circumstances may warrant a dissolution of the For Profit Corporation, such as a dispute on the direction of the business, the profitability of the business, or simply a disagreement regarding employment and management duties. When these disputes arise, it may make the For Profit Corporation untenable and impractical. This can be a problem if one owner of the company wishes to continue business as usual and the other owner wishes to dissolve the corporation.
When making the decision to enter into a For Profit Corporation and splitting equity within the Corporation at a 50/50 ratio please keep in mind a couple of things:
- It will be hard to dissolve the Corporation with a 50/50 split in equity;
- It will cost additional expenses to appoint a receiver to manage the company;
- It will cost additional expenses to retain a lawyer for the purpose of forcibly winding down a For Profit Corporation;
- It will be an uphill battle to dissolve a For Profit Corporation that creates jobs in the community because the policy of Texas Courts’ is to find any alternatives to a dissolution that may bring termination to many employees.
- It will be a complex and time consuming undertaking to dissolve a For Profit Corporation if both equity shareholders do not agree.
Prior to forming a For Profit Corporation, you should research all of your options. Many business organization can provide tax relief and flexibility without the rigidity of a For Profit Corporation. Please seek an experienced attorney when creating or amending any business organization and ask the pros and cons of all business entities.
Why Texas Employment Agreements Are Critical
Texas is an “At Will” state which gives few rights to an employee that are not created by statute or governed by labor regulations. At-will employees can be terminated for any reason, as long as the reason is not in violation of specific statues or is due to failure or refusal of the employee to commit an illegal act during employment. An Employment Contract is of critical importance in order to create equal rights and obligations that are enforceable. An employment contract must directly limit the employer’s right to terminate an employee without due cause or provide for a “term” of employment that is firm. In the employment contract the employer should unequivocally indicate that termination of the employee’s job will only occur in specific defined circumstances. This contract may also set out the terms on which a company hires an individual or an individual hires a company. If properly prepared, this contract is a legally binding agreement in Texas and is enforceable in a court of law.
In Texas, an oral employment agreement with a term less than one year in duration or which can be fully performed within one year, is generally binding.
Contract terms can flow from a number of sources which may include the following:
• Verbal agreements
• Agreements in writing or document form
• Agreements required by law
• Implied – not written but mutually understood to exist
• An offer letter
• An employee handbook
• A company notice board
• Collective agreements
• Emails
• Faxes
Wrongful dismissal is a breach in the way the employee is dismissed, i.e. without being given proper notice or following the procedures as terms or rights set out in the employment contract.
In order to modify a contract, there must be a subsequent agreement between the parties. Under certain circumstances, the employer may need to make changes to the contract because of economic circumstances. Things that might may be modified include:
• Rate of pay
• Work time
• Duties and responsibilities
• Work Location
• Correcting an error in the contract
• Disciplinary action – check disciplinary procedures to make sure this is done properly
Employees may ask for a change in a contract to:
• Improve their work environment
• Get a raise in pay
• Get more vacation or holiday time
• Change work hours
A breach of the contract occurs when either the employer or the employee violates a condition or term in the contract. A breach may be the result of a verbal or an oral (implied) agreement. If you think a breach of contract has occurred, it is best to take the problem to the employer first and attempt to work out a solution. If you decide to take legal action, remember you will need to prove financial loss in order to receive compensation. Legal action may prompt the employer to counter sue, if the employer thinks it has legal ground. An employer has the legal right to sue the employee for damages just as the employee has the right to sue the employer.
Texas Deceptive Trade Practices Act : Pre-Purchase Protection When Buying a Home in Texas
Purchasing a home can be a daunting yet exhilarating experience depending on the circumstances. Sometimes after a couple has purchased a home they regretfully discover many construction defects that were not disclosed to them by the Seller. Many undisclosed material defects within a home not detected by the buyer’s independent inspector that were misrepresented by the Seller may cause severe hardships in the future.
Legal relief requires an experienced real estate lawyer. A fraudulent misrepresentation made by a Seller when selling a home may give rise to a claim under the Deceptive Trade Practices Act of Texas. Multiple provisions relating to the misrepresentation of property per Tex. Bus. & Comm. Code §§ 17.46(b) are designed to protect a buyer. These misrepresentations if properly proven by the evidence will give rise to certain damages available to Buyers under the Texas DTPA Statute.
If you are the victim of fraudulent misrepresentations your independent inspector did not discover during the house inspection, you may still have relief. If circumstances prove that a misrepresentation was intently made or defect was concealed by the Seller, then under the DTPA you may be eligible to receive Economic Damages. Economic Damages include compensation for any pecuniary loss, including repair or replacement of defect. If the buyer of the home is victorious at trial, attorney’s fees and additional damages may be awarded as well.
If it can be proven that a Seller “knowingly” misrepresented a portion of the home to a buyer such as hiding evidence of termites, hiding foundation defect or old repairs, or electrical problems, then the buyer may be entitled to 3 times the amount of actual economic damages of the suit including attorney’s fees. The DTPA is a consumer based protection statute that ensures normal people are not taken advantage of due to their lack of knowledge.
If you are a buyer that has intentionally been taken advantage of by a Seller through fraud or deceit you should find an experienced attorney. DTPA actions are complex and time sensitive. An experienced attorney will give you the highest probability of success.
The Texas housing market is exploding and there are many out of state individuals moving into the Dallas / Fort Worth area. If you are a native Texan or a family transferring into the Dallas / Fort Worth area and feel you have been fraudulently deceived by a Seller, please call an experienced attorney with a firm hand to obtain the justice you deserve under the DTPA and other Consumer Protection Laws.
Julian Nacol, Attorney
Nacol Law Firm P.C.
Texas Condominium HOA’s and Foreclosure
A Texas condominium HOA ( Home Owner Association ) has more power than a Texas residential HOA to foreclosure on a unit. Foreclosure is a constant source of anxiety for many condominium owners that may have exiting outstanding assessment fees. If you are a condominium owner be sure to pay timely your HOA assessment fees.
An HOA may foreclose on your condominium judicially or non-judicially through a deed of trust. Read your Texas HOA By-laws carefully. The By-laws will state what power the HOA has and the notices required before the foreclosure process may be implemented. A few key things to keep in mind regarding Condominium HOA Foreclosures are:
- A Condominium HOA may foreclose if you have outstanding assessment fees;
- A Condominium HOA may not foreclose if the debt you owe is solely based on HOA fines;
- The HOA Bylaws will dictate to whether the association can foreclose on your property judicially or non-judicially;
- After a foreclosure, you will have 90-days to redeem your property from the HOA or a third-party buyer;
- The HOA must send you notice of default for any outstanding assessment fees prior to foreclosure;
If a HOA files for a judicial foreclosure on your condominium, which is utilized as a residence, then you must be given two separate notices per Texas Property Code § 52.001. First a notice of default, which gives you 20-days to cure any outstanding debt. After the notice of default, a notice of sale must be sent 21-days prior to the foreclosure sale. Both notices are mandatory for a judicial foreclosure sale.
If the notices are not properly given or if the HOA wrongfully forecloses on your condominium there is recourse. A wrongful foreclosure cause of action if successful will entitle you to monetary damages but it will be an uphill battle to regain the property if the property is sold and the 90-day redemption period has expired. It is important to know that if a foreclosure has taken place, even if wrongful, it will be difficult to recover the property, especially if a third party purchases the unit, and takes title at the foreclosure sale. It is important to realize that suing an HOA involves inherent risks. Many HOAs are not solvent and obtaining a money judgment against the association may be worthless if the HOA has no property or other assets subject to execution.
The wisest course of action is to contact a lawyer as soon as possible if you have been subjected to a wrongful foreclosure proceeding. It is far easier to stop a foreclosure during the process than it is to regain title to your property after it has been sold.
Julian Nacol, Attorney
Nacol Law Firm P.C.
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
