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James Brian Thomas

James Thomas’s Answers

591 total

  • Accounting of trust

    When a judge orders an accounting, can the trustee just right down some figures and give the judge the accounting? When a trustee is ordered by the judge to give an order for accounting does the trustee have to have support document with the acco...

    James’s Answer

    Mr. Geffen offers you some very good insight. While a Court with the appropriate jurisdiction can certainly compel a Trustee to account, the burden of complaining about the contents of that accounting will always rest with an interested party that believes the accounting is inaccurate or lacking in some regard.

    Bottom line: it isn't the Court's job to determine if the numbers are off, or if all of the supporting documentation has been adequately disclosed to the interested parties. Those parties are the ones that must request additional relief, whether in the form of a supplemental accounting request or a lawsuit for some specific breach of fiduciary duty by the Trustee.

    Probate and trust litigation is often complicated. The best suggestion that I can add is to retain the services of an attorney well-versed in fiduciary liability and the rights of interested parties to the trust. You want an attorney on your side, and you do not want to simply rely on the Court to advocate your interests.

    I see that you're posting from the Dallas area. My firm's expertise lies in fiduciary litigation, and specifically with issues just like the one that you've described. If you'd like to visit more about your concerns, please feel free to contact me through the website below or through my profile on this site.

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  • How do you treat an asset that is not referenced in a will? Executor was informed by deceased what they wanted done with it.

    My dad had an asset he wanted to have one of his grandsons to have. He did not write it down in his will. I am executor of his trust which is soon to be finalized. Now having a problem with other beneficiaries stating that it isn't fair and tha...

    James’s Answer

    Stop what you're doing and take these concerns to an attorney. If you haven't yet seen the recurring theme among the answers here, it's a pretty simple one. Executors, administrators, personal representatives and trustees all owe fiduciary duties to other people. These are legally binding obligations that dictate how you perform and what acts you can engage in.

    My California colleagues have all given you some very sound insight. Speaking purely from Texas, and since you asked about the consequences of "writing in your own" terms of the Will, I can name a few fairly universal reasons why your idea sounds particularly unpleasant. You could be removed from your fiduciary position, and maybe even replaced by one of those unhappy beneficiaries. You could face personal liability for your willful damage to the estate. The entire estate could be paid to attorneys simply to fight about all of this.

    Do yourself a favor and get the Will in front of an attorney that can specifically advise you of your obligations and boundaries. Relying on your own moral compass is not an option that guides you down the appropriate road.

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  • My wife appointed a fellow church member power of attorney ( Jehovah witness)

    My wife who is a Jehovah witness appointed a "Elder"from her church to be her medical power of attorney. I am not a JW this is the reason they brought this up. My question is if something was to happen to my wife would i have my hands tied? if so ...

    James’s Answer

    The agent under the Power of Attorney would be authorized to make decisions concerning your wife's care and treatment. Their authority as agent would trump yours as husband. Unfortunately, as you put it, your hands would be tied.

    Bear in mind that the Power of Attorney likely springs to life upon your wife's inability to make these kinds of decisions for herself. Appointing an agent is a deeply personal act, and religious concerns can certainly play a role in the decision. I feel pretty certain that you have had a very open, honest and frank conversation with your wife regarding this. If not, it's a conversation worth having while your wife has the ability to express her desires and concerns.

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  • Can atty charge for schooling to learn estate law?

    Atty charged for "charges for course related to probate estate to learn the law". The charges so he can talk to the head of the firm who we hired inthe first place so double billed.

    James’s Answer

    • Selected as best answer

    That's certainly an interesting invoice entry. I'm assuming that your contract with the firm probably identifies the types of charges that you might expect in the course of their representation of you. "Learning the law" probably didn't make the list, although collaboration among attorneys in a firm is pretty common (and helpful,) and you're right to be mindful of the double-billing potential.

    If you have a question or a complaint about the bill from your lawyer, go tell your lawyer. This forum is intended to provide quick information and thought, most of which boils down to "go get a lawyer." It is not, and should not become, a forum for clients rightfully ticked off to vent their frustration. You need to have this discussion with your attorney.

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  • My stepfather just passed away at 90 a former Dr. and FIRST Mayor which hAS opened the door for my step-sister to get anything.

    The Stp-Sister GOT Guard., 3 years ago instead of my mother who is 79 and in the health range of a 50 year old. When my papa died my step sisters guard should have ended "Though she had my SF body" without my mothers knowing sent to Florida for...

    James’s Answer

    I've read through your comment a number of times and still can't quite determine what question you might be trying to ask. In sum, you've got a terrible situation.

    Here's what I think we can agree on. Issues like elder abuse, financial exploitation and even abuse of the guardianship statutes (which vary considerably among our states) are increasing across the board. The bottom line in your facts, from what I can make out, is that you find fault not only with your sister's actions as guardian, but with the Court that gave her this authority to begin with. I'd agree with you that our lawmakers might learn a thing or two by exposing themselves to more situations like this, but that's hardly likely to happen through this website.

    If you want to come even close to a satisfactory resolution, you're going to need a lawyer very experienced in guardianship law and quite possibly in guardianship appeals as well. The level of distrust you have for your sister and the Court clearly makes you a motivated client, but that motivation does not translate to the knowledge and experience that you need on your side to alter these facts in the slightest. I realize you didn't come to this forum simply to be told "go get a lawyer," but your solution is staring you in the face. Best of luck.

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  • Can my sister that is legal Guardian of my mother instruct the nursing home that no other siblings are allowed to visit her

    Other siblings were not aware she would stop all communication when we allowed her guardianship. Mother not allowed a phone to call.and all mail is kept by sister. This began when my sister got mad at us for different things. She now controls us ...

    James’s Answer

    The short answer to "Can she do this" is Yes, she can. Whether or not she should is, as the previous response points out, a question for the Court. As your mother's guardian, your sister is vested with the authority to make this decision. Her authority is not, however, invulnerable. Your sister's decisions must be centered on your mother's best interests.

    Unfortunately, probate and guardianship attorneys see issues like yours all too frequently. Mom becomes a chess piece, and she is moved back and forth across the board in a dispute that has very little to do with her -- and much more to do with the relationships between her children.

    Without knowing the details of your family dynamic, I can certainly tell you that any Judge in Texas would be very skeptical of a guardian's decision like your sister's. There would need to be some pretty overwhelming evidence of harassment or abuse to warrant shutting family members out, and I would guess that if your mom could express her desires, she would indicate a willingness to visit with all of her children.

    It's time to get an attorney on your side of the ball. Document the occasions on which your sister has limited or prohibited access to your mother. Get it in writing. Hire your attorney, and take the issue to the supervising court.

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  • Is it a conflict of interest for my sister, co-executor of my father's estate, to have the same attorney that my father had?

    My father passed away 18 months ago. My sister is co-executor of his will. The attorney my father utilized for the past 30+ years is the same attorney that my sister and her family has used for the past 20+ years. Since there is conflict with t...

    James’s Answer

    Your title and your question don't exactly match up. Is it a conflict for your sister to use the same attorney as your father did when he was alive? Not by itself, no. But whether or not the attorney has some conflict hardly addresses your actual concerns. "Conflict of interest" are not magic words that make your sister live up to her legal obligations.

    You've asked another party's attorney for something and he has refused. What exactly did you expect? He works for your sister. Not for you.

    It's time to stop asking for free insight, and hire an attorney that represents your interests. All of the well-thought responses you gain here are meaningless without your own representation.

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  • Is it possible to have someone removed as a co-executor of my fathers estate?

    There are 4 children to receive the division of my father's estate. He passed 18 months ago. My sister and eldest brother are co-execs of his estate. My sister has failed to provide info, documents, records, financial records regarding the estat...

    James’s Answer

    Eighteen months with no resolution is far too long. I'm assuming, since you mention your sister's attorney, that the probate process has actually been initiated, and both your sister and brother properly appointed by the Court. If that hasn't happened yet, it needs to be your first priority.

    Next, there are several opportunities for you to obtain some information concerning the estate and your sister's actions or inaction relative to it. Within 90 days of being appointed, your sister was required to file an Inventory that the Court must approve. If this has happened, the Inventory, and the Order approving it, are matters of public record. You can obtain one from the county clerk. If no Inventory has been filed, you have cause to seek removal of not just your sister, but your brother as well.

    You also have a right to an accounting each year that the estate is open, beginning the 15th month after the date that your siblings were appointed. If no accounting is produced, the Court can compel its preparation and production.

    Your best option at this point is to retain an experienced probate attorney that also has some experience in fiduciary litigation and removing executors. Dividing real estate is hardly ever fun. Your siblings have legal obligations to act in the interests of the estate as a whole -- not just toward their own selfish means. How a property division could be proposed that effectively defeats the equal division of the estate is accomplished is beyond me. If the land is not able to be fairly partitioned, or sold and divided by agreement of the beneficiaries, the Court can take of that for you too.

    Self-help is not your ally here. Your sister has an attorney and you should too. Lend your efforts and energy in that direction, and you'll likely see a resolution come much faster.

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  • My grandfather passed away on October 3, 2011. He left a Will to be divided between the 14 of us.

    My sister-in-law is the named Executrix. She has not done anything about it at all. I understand we are suppose to receive a list (some type of inventory)..not sure what it is called..but within 90 days. It is passed the 90 days now and we are not...

    James’s Answer

    • Selected as best answer

    Ms. Sinclair makes an excellent point. Being nominated to serve as the Executrix is not the same as being appointed to serve as the Executrix. Knowing the status of the proceedings will go far to determine what your rights to information look like at this point.

    The Clerk of the probate court in the county of your grandfather's residence can at least give you some idea of where the proceedings are, if they've even been initiated.

    If your sister-in-law hired her attorney and filed the Will as early as the day after your grandfather died, several things could have happened by this point. A brief hearing would likely have been held as early as the end of October. This would be the hearing to admit the Will to probate and appoint your sister-in-law to her nominated position. After that, she would have 30 days to notify creditors generally, by publishing a legal notice. Your sister-in-law would also have 60 days to notify each beneficiary specifically. You would be entitled to a copy of the Will and the Order admitting it to probate.

    The 90-day time that you cite is in fact the due date for the Inventory, if it is not extended by the Court. That 90-day window begins running from the date the Will is admitted to probate and the personal representative appointed. Even if your sister-in-law filed the Will almost immediately, this 90 days would only have recently expired. If she's actually overdue on the Inventory (which is filed with the Clerk, and not necessarily delivered to each beneficiary,) the Court will begin by sending her a reminder letter and may ultimately revoke her Letters Testamentary if she avoids this obligation.

    In all likelihood, your sister-in-law was nominated to serve as the Independent Executrix. The word "independent" has significant meaning, and bears some important consequences for you as a beneficiary. Ordinarily, in an independent administration, your right to an accounting of the executor's actions does not mature and become enforceable until 15 months after the date that the Will was admitted to probate. Two years after the Will is admitted to probate, you could file a request for the executor to partition and distribute the estate. The result is some rather great leniency and freedom granted to independent executors.

    In the meantime, while you may not be able to compel an accounting or force distribution, you can certainly remain vigilant about your sister-in-law's execution of her obligations. Her attorney does not work for you, and I think that you've gathered that. If you are less than satisfied with the information that you are receiving, if any, I would encourage you to retain your own probate attorney. Even if their only job is to keep an eye on your sister, your attorney could certainly help you keep her on the right track.

    Cooperation and communication are key here, particularly when it comes to dealing with items of personal property that might not be of significant monetary value. An attorney on your side can help you present your concerns in a practical and hopefully non-confrontational manner.

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  • I have a client who I filed an APS report on. When the investigator spoke with the client she lied about everything.

    She is estrainged from her entire family because she does not tell the truth. What can the family do to get her moved to a place where her medications will be monitored and she will be safe. No family member wants to be her guardian and she has ...

    James’s Answer

    The probate court staff might direct you to an agency that can provide assistance, or you might visit with a guardianship attorney about what is commonly called an "information letter." As other posters have pointed out, some guardianships are actually initiated by the Court. Those that are started this way typically begin when the Court receives information -- usually by letter -- that a resident is likely incapacitated and in need of assistance.

    Aside from the Court staff itself, you might also try to visit with the court investigator's office. Many larger counties have separate staffs that diligently investigate guardianship matters. With the family unwilling to take on the burden of caring for your client, turning to the Court may be your best bet.

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