Trust fights and estate fights usually involve the same family, the same assets and the same person who was in charge of them. Whether both cases can go before one judge depends on the county where the case belongs, and Travis County is a good place to have them.
Property Code 115.001(a) gives district courts original and exclusive jurisdiction over trust proceedings, including construing a trust instrument, appointing or removing a trustee, requiring an accounting and surcharging a trustee. Section 115.001(d) makes that exclusivity give way where other law grants jurisdiction to a statutory probate court.
Estates Code 32.006 gives a statutory probate court jurisdiction over actions by or against a trustee and actions involving inter vivos, testamentary and charitable trusts, and 32.007 makes that jurisdiction concurrent with the district courts. Read together, these sections let one judge hear both the estate case and the trust case. That only works in a county with a statutory probate court, and Travis County has two.
In Travis County a trustee dispute goes to a court whose docket is probate, guardianship, trust and mental health matters, with eminent domain cases assigned to Court No. 1. Government Code 25.2291(c) creates the two probate courts, and 25.2293 divides the work between them.
Travis County Probate Courts Local Rule 2.2(3): the court posts instructions on principal and related or ancillary cases, and contested matters with no direct relationship to the administration of the estate generally receive a new cause number.
A trust fight connected to an open estate is a common example. Expect it to be filed under a separate number of its own.
Local Rule 1.3(a)(4): the judges of the two courts may sit and act for each other in any matter pending in either court, and no formal appointment order is necessary. Local Rule 1.3(c): they may transfer cases between the courts for judicial economy, docket equalization or any other reason.
Because of those rules, a new cause number doesn’t leave the trust case in front of a judge who has never seen the estate it came from.
Most people come to a trust dispute with a suspicion and no documents. A trustee who has done nothing wrong will usually hand over the numbers. One who has something to hide tends to go quiet, and that silence becomes part of your case.
Property Code 113.151(a): a beneficiary may make a written demand on the trustee for a written statement of accounts covering all transactions since the last accounting or since the trust was created. If the trustee doesn’t deliver it by the 90th day after receiving the demand, the beneficiary may sue to compel it. If the beneficiary wins that suit, the court may award the beneficiary’s reasonable and necessary attorney’s fees and costs against the trustee individually or as trustee.
Send a demand that’s dated, names the period it covers, and can be proved received. A vague demand lets the trustee argue later that no proper demand was ever made. The statute doesn’t require a trustee to account more than once every twelve months unless a court orders it, so time the demand with that in mind. When the statement arrives, we check whether it reconciles.
Removal and surcharge are separate remedies, and each takes its own proof. Removal takes the trustee out of the position. Surcharge makes the trustee personally pay for a loss to the trust.
Removal is one of the proceedings 115.001 puts before the court, and the grounds that succeed are usually documentary: trust property sold to the trustee’s own relative, trust funds in a personal account, compensation taken without authority, or an accounting that doesn’t reconcile. A trustee the family finds cold or unresponsive usually doesn’t give you a removal case on that basis alone.
Surcharge requires a loss you can trace to a specific decision. The same facts usually support a breach of fiduciary duty claim, and where the trustee is also the executor, that case and the executor removal case are built from the same records. That overlap is a good reason to keep both cases in the Travis County probate courts.
Sometimes the trustee is honest and the trust itself is the obstacle. It may have been written decades ago for a tax regime that no longer exists, it may contain an administrative provision that costs more than the asset it governs, or its distribution standard may be open to two readings.
Property Code 112.054: on the petition of a trustee or a beneficiary, a court may modify or terminate a trust on listed grounds, including where circumstances the settlor didn’t know of or anticipate mean the order would further the trust’s purposes, where changing administrative terms would prevent waste or impairment of the trust’s administration, or where continuing the trust isn’t necessary to achieve any material purpose. The court must shape its order to conform as nearly as possible to the settlor’s probable intention.
These petitions are often agreed. They’re still litigation, and in Travis County they go to one of the two probate courts along with the family’s other cases.
We litigate trust disputes. We don’t draft trusts or do estate planning, so if you need a document written, we’re not the right firm.
A spendthrift provision keeps a beneficiary from assigning or pledging an interest in the trust, and it keeps that interest away from the beneficiary’s own creditors while it stays in the trust. It does that job well, and a trustee under pressure will often point to it.
The clause protects the beneficiary’s interest. It doesn’t cancel the right to demand a statement of accounts under Property Code 113.151, and it doesn’t bar a suit to remove or surcharge a trustee. On a modification petition, 112.054 makes it a factor the court considers, and the court isn’t barred from modifying a trust just because it’s a spendthrift trust. A trustee who cites the clause as a reason to keep the books closed is relying on the wrong provision.
We appear in Travis, Williamson, Hays, Bastrop, Caldwell and Burnet counties.
Bring the trust instrument, any accounting you’ve been given, and the names of everyone who takes under the trust. If there’s an open estate in either Travis County probate court, bring that cause number too.
The first call is free, and it’s usually short.