Most sizeable Texas estates have a trust in them somewhere. It might be a revocable trust the decedent set up and funded during life, a testamentary trust created by the will, or a trust for a child or surviving spouse that’s meant to run for years after the estate closes.
When a trust goes wrong, the dispute can look like a probate fight. It runs under the Texas Property Code instead of the Estates Code, though, and sometimes it belongs in a different court.
Forum is the first question in any trust case, and Harris County has an advantage that counties without a statutory probate court don’t.
Texas Property Code Section 115.001 starts from the rule that a district court has original and exclusive jurisdiction over all proceedings by or against a trustee and all proceedings concerning trusts. That covers construing a trust instrument, appointing or removing a trustee, determining a trustee’s powers and liability, ascertaining beneficiaries, requiring an accounting and reviewing trustee fees, and surcharging a trustee. Section 115.001(a-1) says that list isn’t exhaustive.
Section 115.001(d) then lists the courts that also have jurisdiction, and a statutory probate court is first on that list.
Harris County has statutory probate courts. Under Texas Estates Code Section 32.006, those courts have jurisdiction over an action by or against a trustee and an action involving an inter vivos trust, a testamentary trust, or a charitable trust. Section 32.007 makes their jurisdiction over those same categories concurrent with the district court.
In practice, when a family is fighting over an estate and a trust at the same time and the facts and witnesses overlap, both disputes can often be heard together in one Harris County probate court. Keeping them in one court saves a great deal of money. It also avoids the risk of two courts reaching inconsistent conclusions about the same conduct.
We make the forum decision deliberately when the case is filed. It’s one of the few real strategic choices you get at the start of a trust case.
Under Texas Property Code Section 113.082, a trustee may be removed in accordance with the terms of the trust instrument, or on the petition of an interested person and after a hearing a court may in its discretion remove a trustee and deny part or all of the trustee’s compensation if:
Two features of that statute drive most cases. The first ground requires a material financial loss, so a technical breach that cost the trust nothing makes a weaker removal case than it may feel like to the beneficiary. The fourth ground, other cause, is left open on purpose. That’s why serious hostility between a trustee and the beneficiaries can support removal even without a clean statutory violation.
Section 113.082(b) lets a beneficiary, cotrustee, or successor trustee treat a violation resulting in removal as a breach of trust. That matters because removal by itself doesn’t recover any money, so a beneficiary who’s been harmed will usually pursue a damages claim alongside the removal.
Most trust cases begin with the accounting, and failure to account is its own removal ground. Trustees who have been self-dealing rarely admit it. When a trustee can’t produce a coherent accounting, though, the gaps in it usually point to the problem.
Section 115.001 expressly lets the court require an accounting by a trustee, review trustee fees, settle interim or final accounts, and surcharge a trustee. Surcharge is the remedy that puts money back into the trust.
The items that draw scrutiny are familiar from other fiduciary cases. We look at payments to the trustee or the trustee’s family, transactions with entities the trustee controls, and trust property the trustee is using personally. We also look for compensation taken without authority, investments left to waste, and distributions that favor one beneficiary over another without support in the instrument.
Some trust disputes don’t involve any accusation at all. Sometimes the instrument just doesn’t work anymore.
Under Texas Property Code Section 112.054, on the petition of a trustee or a beneficiary a court may order that the trustee be changed, that the terms be modified, that the trustee be directed or permitted to do something the trust forbids, that the trustee be prohibited from doing something the trust requires, or that the trust be terminated in whole or in part. The grounds include that the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill, that because of circumstances the settlor did not know about or anticipate the order will further the purposes of the trust, and that modification of administrative, nondispositive terms is necessary or appropriate to prevent waste or impairment of the trust’s administration.
These petitions are often agreed. A trust drafted thirty years ago may have administrative provisions that now cost the beneficiaries money for no benefit, and the court can fix that without anyone being at fault.
Some disputes are about what the document means. Section 115.001 gives the court power to construe a trust instrument, determine the law applicable to it, ascertain beneficiaries, and decide questions that come up in administration or distribution.
A construction suit is the right tool when a trustee really doesn’t know what the instrument requires and needs a court order before acting. Filing one isn’t a hostile act. A trustee who acts on a guess instead is the one taking on the risk if the guess is wrong.
Harris County has five statutory probate courts, created by Texas Government Code Section 25.1031(c).
Probate Courts 1 through 4 sit at the Harris County Civil Courthouse, 201 Caroline Street. Probate Court No. 5 is at 1115 Congress Street, 5th Floor.
A trust isn’t under continuing court supervision the way a dependent administration is. Section 115.001(c) says a court may intervene in a trust’s administration to the extent an interested person invokes its jurisdiction, and that a trust isn’t subject to continuing judicial supervision unless the court orders it. In practice, no court looks at what a trustee is doing until a beneficiary asks it to.
We represent beneficiaries bringing these claims and trustees defending them. We don’t draft trusts or do estate planning.
The first conversation is a short call, and it’s free. Bring a copy of the trust instrument if you have one, any accountings you’ve received, and a description of what the trustee did or failed to do.
Schedule a consultation or call (281) 219-9090.