Posts Tagged fiduciary duty
Someone I know died having written a will. I know who has the will, but s/he refuses to file it for probate.
Posted by David Leon in Estate planning and probate on 09/08/2009
Unfortunately, this is not uncommon. If you have possession of a deceased person’s will, you have a duty to either file the will for probate (assuming you have standing or capacity to do so) or you should deliver the will to the clerk of the court.
If you fail to do so, a person may file an action in the appropriate county’s probate court and compel you to appear before a judge and explain why the will was not delivered to the county clerk in accordance with Sec. 75 of the Probate Code. If the custodian of the will fails to deliver the will to court, the court may find the person in contempt of court. A judge may find that any person refusing to deliver such will to be liable to any person aggrieved for all damages sustained as a result of such refusal.
For example, let’s suppose Jose dies after making a will, leaving his house to Anna. Jesse has Jose’s will, but refuses to deliver it to the county clerk. Anna misses an opportunity to sell Jose’s house because of Jesse’s refusal to deliver the will. Anna may have a cause of action against Jesse for his wrongful refusal to deliver the will to the court.
(See: Sec. 75 of the Texas Probate Code)
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Who can bring a lawsuit for wrongful death?
Posted by David Leon in Estate planning and probate, Litigation and judgments, Personal injury, auto accident, slip and fall law on 05/07/2009
Wrongful death causes of action are controlled by Chapter 71 of the Texas Civil Practice and Remedies Code (CPRC).
Per Sec. 71.004, the surviving spouse, children, and parents of the deceased are the only ones who can bring an action for wrongful death.
If none of the individuals entitled to bring an action have begun the action within three calendar months after the death, then the personal representative of the estate shall bring and prosecute the action unless requested not to by all those individuals.
In most cases, it is advisable to have the wrongful death beneficiaries and the beneficiaries of the estate sign a family settlement agreement prior to taking any action.
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What is a fiduciary duty?
Posted by David Leon in Business law, Estate planning and probate, Insurance Law, Litigation and judgments on 28/06/2009
A fiduciary duty is the highest standard of care one can owe to another. The fiduciary relationship is one of trust and confidence. The person or institution who owes the fiduciary duty must put the person’s interests above his or her own interests. Common examples of fiduciary duty include power of attorney holders, executors in wills, and trustees of trusts.
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I think someone is abusing a power of attorney. How would I override the power of attorney?
Posted by David Leon in Estate planning and probate, Litigation and judgments on 28/02/2009
A power of attorney grantor can grant broad powers under the power of attorney document to a power holder. The power holder owes a fiduciary duty to the power grantor. This means that the power holder must put the interests of the power grantor above his or her own interests. If a power holder is acting beyond the scope of the powers granted by the document, or the power holder is abusing the power, then the power grantor (or the power grantor’s representative) can hold the power holder accountable. If you have an issue such as this that you would like to discuss, please contact us.
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Can an officer or director of a company be liable to the shareholders for actions taken on behalf of the company?
Posted by David Leon in Business law, Litigation and judgments on 15/02/2009
There are times the officers and directors may be personally liable for their actions taken on behalf of a company. Additionally, directors and officers owe specific duties of loyalty to the company. Breaches of these duties (some of which may be fiduciary duties) are actionable. Also, problems may arise when minority shareholders are treated unfairly. A common issue is when a director of a company “self deals” at the expense of the company. Contact Us for more information.
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What is fiduciary litigation?
Posted by David Leon in Estate planning and probate, Litigation and judgments on 15/02/2009
A fiduciary is someone who owes the highest duty of care to another person. In this type of litigation a fiduciary may be the person in charge of a retirment plan, a person who has been appointed power of attorney, guardian, administrator or executor of a ward or an estate. If this person puts his or her interest above those to whom s/he owes the fiduciary duty, then such conduct is actionable. For example, suppose John holds a power of attorney document to conduct the affairs of Steve. John uses the power of attorney for his own benefit. Steve has a cause of action against John for breach of fiduciary duty.
Please contact us if you have a situation that you would like to discuss further.
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Can someone use a medical power of attorney to discontinue life support?
Posted by David Leon in Estate planning and probate on 08/12/2007
No. A medical power of attorney is only used to make medical treatment decisions. To make decisions regarding discontinuation of life support, you would need to execute a living will.
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I executed a medical power of attorney. Can someone override my decisions?
Posted by David Leon in Estate planning and probate on 08/12/2007
No. So long as you are competent, you can revoke a power of attorney, medical or otherwise. Also, the medical power of attorney is only in effect if you are unable to make your decisions known.
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What is a medical power of attorney?
Posted by David Leon in Estate planning and probate on 08/12/2007
A medical power of attorney is a document that allows someone to make medical decisions on your behalf if you are incapable of making them yourself.
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What is a durable power of attorney?
Posted by David Leon in Estate planning and probate on 08/12/2007
A durable power of attorney is a document that allows someone to act on behalf of you. The power can take place immediately and continue to work if you are later declared incompetent, or it can spring into action if you are later declared to be incompetent. The “durable” portion means that if you are ever declared incompetent (incapable of managing your own affairs) then the person may act on your behalf. The person to whom the power is granted owes a fiduciary duty to the power grantor.
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What is a power of attorney?
Posted by David Leon in Estate planning and probate on 08/12/2007
A power of attorney is a document that allows a person to act on behalf of another person. This power can be limited, which means that the person only has permission to do specific tasks (such as sign a document) or general (giving broad powers). The person holding the power of attorney owes a fiduciary duty to the power grantor.
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What can I do if a director of my company is acting unfairly?
Posted by David Leon in Business law, Litigation and judgments on 24/11/2007
Directors of a company have a duty of loyalty to the company. If you believe that one of your corporate directors is self-dealing or not acting in the company’s best interest, you should Contact Us immediately, as this may be a breach of a fiduciary duty.
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