Brother Sues Brother in Texas Probate Lawsuit: knowing your liability as executor of an estate

When a Personal Representative in Florida breaches their duties and is foundliable in Florida Probate Court they can either be liable individually or in their capacity as PR. The difference is important for you if you’re the one suing because it may affect your ability to collect your money that you did not properly inherit. A recent case in Texas illustrates three mistakes commonly made by PR’s that get them into hot water.

• In The Estate of Boylon a son of an estate sues the PR, who was another son of the testator (this is a Texas case where PRs are referred to as executors).
• The Plaintiff son sued because he claimed that his father lacked the testamentary capacity (in other words he was not mentally capable to make decisions for himself) to name the other brother as PR.
• The Will had a no contest clause which I have blogged about previously, in short thesecause an heir to forfeit their inheritance if they challenge the will.
• The PR distributed the decedent/testator’s assets and gave nothing to his brotherclaiming that the no contest clause caused him to forfeit his entire inheritance.
• The Court found that this was an incorrect application of the law and found the PR liable both individually and in his professional capacity.

This means that the son who inherited nothing due to an error by the PR can collect from the individual assets and accounts owned by the PR. This is a big deal for Florida Probate lawyers because it means a higher chance of the money getting paid. Often judgments against PRs in their PR capacity are useless once the estate has closed! A brief note should be taken that No contest clauses are invalid in Florida as a matter of law, for more see my post earlier this month on No Contest Clauses in Florida.

If you are a PR there are lessons to be taken away from Boylon and three simple ways to steer clear of this predicament:

1. Take your time – here the desire to quickly dispose of the father’s estate left the PR a big bill possibly absorbing his entire inheritance.
2. Read the Rules – here the no contest clause seemed simple enough but the way it had been interpreted by the Texas courts meant that it had not been triggered, avoid this result by not just reading the will as infallible but also looking at the rules in your jurisdiction.
3. When in Doubt, ask a Judge – The court in Boylon stated that the mistake was no defense for the PR, infact the court cited to prior decisions that stated, even if the PR was acting under advice of counsel he would not be excused from liability. How can he avoid liability? Seek a declaratory judgment from a Probate judge, rather than risking paying your own money!