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WHAT EVERY TRUSTEE SHOULD KNOWMARY C. BURDETTE, DallasCalloway Norris Burdette & WeberState Bar of Texas25TH ANNUALESTATE PLANNING & PROBATE DRAFTINGOctober 9-10, 2014DallasCHAPTER 4
MARY C. BURDETTECalloway, Norris, Burdette & Weber, PLLC3811 Turtle Creek Boulevard, Suite 400Dallas, Texas 75219214-521-1520214-521-2201 Faxwww.cnbwlaw.comemail:mburdette@cnbwlaw.comAREAS OF PRACTICEProbate, Trust and Fiduciary Litigation; Estate Administration; Guardianships, including ContestedGuardianships; and Wills and TrustsEDUCATIONJuris Doctor Degree, cum laude, from Southern Methodist University School of Law 1982; Phi DeltaPhi scholastic honorary fraternity; Order of the Coif; Notes and Comments Editor, SouthwesternLaw ReviewBachelor of Science Degree in Accounting, summa cum laude, from the University of Texas atDallas 1978PROFESSIONAL HISTORYAdmitted to the State Bar of Texas by the Supreme Court of Texas, November 1982Calloway, Norris, Burdette & Weber, PLLC, Partner from 1994 to presentThompson & Knight, Tax and Estate Section, 1982-1994 (Shareholder from 1987)Board Certified Estate Planning and Probate Law - Texas Board of Legal SpecializationBoard Certified Tax Law - Texas Board of Legal SpecializationCertified Public AccountantChair of Probate, Estates & Trust Section, Dallas Bar Association 2003-2004Council Member, Real Estate Probate & Trust Law Section, State Bar of Texas 2004-2008Fellow, American College of Trust and Estate CounselMember, Texas Board of Legal Specialization Estate Planning and Probate Law Legal AssistantExam Commission (1999-2004)Certified by the State Bar of Texas Under Probate Code Section 646 to serve as an Ad Litem inGuardianship Proceedings
Named “Texas Super Lawyer” by Texas Monthly magazine since 2002Listed in “The Best Lawyers in America” since 2001Frequent speaker on matters involving probate, trusts, fiduciary law, guardianships and probatelitigation. List of speeches/articles is attached.Member, Dallas Bar Association, Probate, Trusts & Estates SectionMember, State Bar of Texas, Real Estate, Probate & Trust Law SectionAV Rated by Martindale-Hubbell Bar Register of Preeminent Women Lawyers, 2012
MARY C. BURDETTE’S ARTICLES AND SPEECHESFiduciary Duties Within Fiduciary Duties, presented at the State Bar of Texas, Advanced EstatePlanning and Probate Seminar in 2012.Handbook for the Fiduciary, Advising and Counseling Trustees, presented at The University ofTexas School of Law, Estate Planning, Guardianship and Elder Law Conference in 2012.Enforcing Beneficiaries’ Rights, presented at: The Tarrant County Probate Bar Association, Probate Litigation Seminar in 2010 The State Bar of Texas, Advanced Estate Planning and Probate Course in 2010. The Probate Section of the Collin County Bar Association in 2011.Keeping Your Plans From Getting Waylaid in Administration, Panel presentation at the State Barof Texas, Annual Advanced Estate Planning Strategies Course in San Diego, CA in 2011.What Did You Mean By That? Trust Language and Application by Trustees, presented at the StateBar of Texas, Advanced Estate Planning and Probate Course in 2011.Handbook for the Fiduciary Advising and Counseling Executors and Trustees, presented at theTexas Society of Certified Public Accountants, Advanced Estate Planning Conference in 2011.Fiduciary Duties Within Fiduciary Duties: Trusts Owning Stock in a Closely-Held Corporation,presented to the State Bar of Texas, Fiduciary Litigation: Beyond the Basics Seminar in 2011.Do’s and Don’ts for Fiduciaries, presented to the Fort Worth Estate Planning Council in 2009.Attorney Liability Issues in Estate Planning and Probate, State Bar of Texas Fiduciary LitigationSeminar in 2008.Death After Divorce, presented at the State Bar of Texas Advanced Estate Planning and ProbateCourse in 2008.Handbook for the Fiduciary Advising and Counseling Executors and Trustees, presented at theTexas Bankers Association, Wealth Management and Trust Division, Estate Administration Seminar2008.Handbook for the Fiduciary Advising and Counseling Executors and Trustees, Houston BarAssociation, Probate, Trusts and Estates Section Wills and Probate Institute - Fundamentals, in 2008.Executor’s Handbook, presented at the Houston Bar Association Probate, Trusts & Estates Section,2007 Wills and Probate Institute - Fundamentals in 2007.Fiduciary Issues, Panel presentation at the Advance Estate Planning Strategies Course, State Bar ofTexas, in Albuquerque, New Mexico in 2007.Dealing With the Runaway Executor, Panel presentation with Mike Cenatiempo and Al Golden atthe State Bar of Texas, Advanced Estate Planning and Probate Course in 2006.
Dependent Administrations, presented at the Paralegal Division of the State Bar of Texas, TexasAdvanced Paralegal Seminar in 2006.Pitfalls of the Not So “Simple” Probate, presented to the Docket Call Probate Seminar in SanAntonio, Texas in 2005.Fiduciary Issues in Probate and Trust Matters, Handbook for the Fiduciary, Advising andCounseling Executors and Trustees, presented at the Houston Bar Association, Wills and ProbateInstitute 2005.Standing Issues in Probate Litigation or No “Meddlesome Intruders” Allowed, presented at theAdvanced Estate Planning and Probate Seminar in 2005.Avoiding Probate Litigation, presented to the Dallas Bar Association Legal Assistants Section in2005.Defending the Fiduciary’s Lawyer, Panel presentation to the Tarrant County Probate LitigationSeminar in 2005.Handbook for the Fiduciary, Advising and Counseling Executors and Trustees, presented at theAdvanced Drafting: Estate Planning & Probate Course in 2005.Daubert - the Impact on Estate and Fiduciary Litigation, presented with Judge Steve M. King,Probate Court Number One, Tarrant County, Texas, at the State Bar of Texas, Advanced EstatePlanning and Probate Course in 2004.Joint Tenancy with Right of Survivorship Accounts, Dallas Bar Association Headnotes Article, July2004.Avoiding Probate Litigation, presented at the Tarrant County Probate Bar Association Third AnnualProbate Litigation Seminar in 2004.Pitfalls of the Not So “Simple” Probate, presented at The Center For American and InternationalLaw, 43rd Annual Program on Wills, Trusts and Estate Planning in 2004.Evidentiary Issues in Probate and Fiduciary Litigation, presented at the Tarrant County Probate BarAssociation Probate Litigation Seminar in 2003.Handbook for the Fiduciary Advising and Counseling Executors and Trustees, presented to theTravis County Bar Association in 2003.Fiduciary Issues Regarding Financial Powers of Attorney, presented to the Tarrant County ProbateBar Association in 2002.Experts in Probate, The Search for the Right Stuff, presented with Judge Steve M. King, ProbateCourt Number One, Tarrant County, Texas, at the Tarrant County Probate Bar Association, ProbateLitigation Seminar in 2002.
What Every Trustee Should KnowChapter 4TABLE OF CONTENTSI.DUTIES AND RESPONSIBILITIES OF TRUSTEES . 1A. Sources of Authority . 11. Trust Instrument . 12. Texas Trust Code . 23. Texas Common Law . 24. Other Potential Sources . 2B. Fiduciary Duties . 21. Defined. . 22. Categories. . 23. Limitations on Fiduciary Duties . 5II.TRUST ADMINISTRATION. 7A. Distributions . 71. Trustee s Duty to Make Distributions . 72. Standards . 7B. Delegation of Duties . 171. Duty Not To Delegate. 172. Delegation Between Co-Trustees. . 173. Ability to Delegate Investment Decisions . 17C. Duties Concerning Investments . 171. Uniform Prudent Investor Act. . 172. Standard of Care. . 183. Diversification . 184. Duties at Inception of Trusteeship . 18D. Trust Owning Closely-Held Business . 181. Diversification Issues . 182. When Trustee is also Officer/Director - Standard of Care Issues. 19III. TRUST RECORDS AND ACCOUNTINGS. 21A. Record Keeping . 21B. Texas Trust Code Accounting . 22C. Trust Accounting Alternatives . 22IV. COMPENSATION. 23A. Compensation . 23B. Reimbursement of Expenses . 23C. Exoneration for Torts . 23V. RESIGNATION AND REMOVAL OF TRUSTEES . 23A. Resignation . 23B. Removal. 241. Judicial Proceeding . 242. Removal Power in Trust Instrument . 24C. Discharge of Liability Upon Resignation . 241. Judicial Release . 242. Non-Judicial Release . 25VI. LITIGATION TOPICS . 25A. Duty of Impartiality . 25B. Judicial Review of Discretionary Decisions. 25C. Remedies For Breach of Fiduciary Duties . 261. Comprehensive Statutory List of Remedies .
What Every Trustee Should Know Chapter 4 1 WHAT EVERY TRUSTEE SHOULD KNOW I. DUTIES AND RESPONSIBILITIES OF TRUSTEES A. Sources of Authority There are three main sources of guidance and authority for a trustee, in the following order of priority: (1) the trust instrument, (2) the Texas Trust Code, and (3) the common law. (All references to the
