David F. Johnson presented “Trust Issues In Divorce Proceedings” on November 17, 2021. This presentation covered trust issues that arise in divorce disputes, such as spouses creating an irrevocable trust, fraud claims to void a trust, conflict of interest issues raised by the same attorney drafting both spouse’s estate/trust documents, characterization of trust assets and

David F. Johnson presented “Trustee’s Obligation to Inform Beneficiaries: Avoiding Breach of Fiduciary Duty Claims” to a national audience on November 16, 2021, via Strafford publishing with his co-presenter Scott E. Rahn, founder of RMO LLP. A critical obligation for trustees of irrevocable trusts is the duty to inform beneficiaries of the trust’s existence and

David will cover recent statutory changes and case law updates. He will discuss extending the rule against perpetuities, de jure versus de facto status as trustee, modifications to trusts, trust construction, temporary injunctions against trustees, trustee authority to sell real estate, trust management of closely held businesses, co-trustee management, exculpatory clauses, acceptance-of-the-benefits doctrine, will reformation

David F. Johnson co-presented “Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely Held Businesses” with Kenneth J. Fair from Wright, Close & Barger LLP to the AFHE (Attorneys For Family-Held Enterprises) Fall Conference in Phoenix, Arizona, on November 29, 2021. This presentation discussed how and why trusts own closely held business interests, trustee’s duties

David F. Johnson presented his paper “Is There a Trustee Get Out of Jail Free Card? The Use of Exculpatory Clauses in Trust Documents in Texas” to the Dallas Bar Association Probate, Trusts, and Estates Section on October 26, 2021. This presentation discussed the different types of exculpatory clauses in trust documents, why they exist,

David Johnson presented his paper entitled “Fiduciary Litigation Update 2020-2021” to the Texas Bankers Association’s Wealth Management & Trust Conference on September 30, 2021. This presentation covered recent statutory changes and case law updates. He discussed extending the rule against perpetuities, de jure versus de facto status as trustee, modifications to trusts, trust construction, temporary

David F. Johnson presented his paper “Practical Issues Concerning Power of Attorney Transactions” to the Annual Legal Conference 2021 hosted by the Texas Bankers Association and the Southwest Association of Bank Counsel on October 7, 2021. This presentation addressed many of the common issues that financial institutions face when a customer’s agent under a power

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses in this two part series many of the interesting and complex issues that arise from trustees making trust distributions to beneficiaries. The first part of the series discussed the general standards for trust distributions. The second part of this series will address other issues concerning distributions, such as the duty to disclose distributions, the duty of impartiality, the principal and income act, prudent investor act, trust provisions that allow the divesting of a beneficiary’s right to distributions, issues arising from a trustee also being a beneficiary, trustee discretion in distributing a trust upon termination, distributions to minors or incapacitated beneficiaries, loans from a trust as a distribution, spendthrift trust issues, co-trustee managing issues, exculpatory clauses, trustee’s defense of failure to know of facts relevant for distributions, trustee’s rights regarding overdistributions, and other relevant issues.
Continue Reading FSIG Webinar – Distributions from Trusts in Texas: Part Two

Trust beneficiaries often request a corporate trustee to prepare a statutory accounting. The Texas Trust Code in Section 113.151 provides that a beneficiary may request a written statement of accounts. Tex. Prop. Code 113.151. Regarding what information needs to be contained in a written statement of accounts, parties and the courts must first look to the terms of the trust. Tex. Prop. Code § 111.0035(b). As one commentator provides: “The settlor may specify in the terms of the trust instrument what must be contained in an accounting by the trustee. When the trust instrument is silent concerning the contents of an accounting, the Trust Code provides a list of items that must be included in every accounting.” 4 Texas Probate, Estate and Trust Administration § 81.63. A trustee and a court should give deference to the trust document and follow its requirements (whether more stringent or less stringent than a statutes require).
Continue Reading Corporate Trustee’s Statements May Suffice For A Statutory Accounting

David F. Johnson presented his paper “Business Divorce: Minority Shareholder Rights In Texas” to the State Bar of Texas’s Business Disputes Course on September 2-3, 2021. This presentation addressed shareholder oppression claims in Texas, minority shareholder rights (such as contractual rights, stock rights, disclosure rights, distribution rights, employment rights, and receivership rights), fiduciary duties in