The most significant threat to your estate plan isn’t usually market volatility or tax law changes, it is the human element.
When you draft a will or trust, you are creating a set of instructions. But instructions are only as effective as the person tasked with carrying them out. In Texas, the individuals you appoint to manage your affairs, your fiduciaries, hold the power to either preserve your legacy or, if chosen poorly, dismantle it through negligence or conflict.
At Duffley Law, we provide a strategic plan for selecting executors, trustees, and agents, grounded in the realities of the Texas Estates Code and the practical experience of avoiding probate disputes.
Key Takeaways
- Your estate plan is only as strong as the fiduciary you choose, because the biggest risk is usually the human element, not taxes or the market.
- Match the person to the job (executor, trustee, agent, guardian), since each role demands different skills, endurance, and judgment under Texas law.
- The best fiduciaries are organized, financially literate, conflict-resistant, and “digitally capable,” because poor records or mishandled digital assets often trigger disputes.
Defining the Core Roles
Before assessing candidates, we must clarify the specific demands of each role. A common mistake in estate planning is assuming one person is suitable for every job. However, the skillset required to raise a child is vastly different from the skillset required to manage a trust portfolio.
1. The Executor (Independent Administrator)
The executor is the CEO of your probate estate. Their role is temporary but intense. Under Texas law, their primary job is to gather assets, pay debts, and distribute what remains to beneficiaries.
- Primary Challenge: Bureaucratic endurance. They must handle court requirements, tax filings, and potential family inquiries.
- Texas Nuance: In Texas, we aim for “Independent Administration,” which allows the executor to act largely without court supervision. This requires a high degree of trustworthiness.
2. The Trustee
If the executor is the sprinter, the trustee is the marathon runner. Trustees manage assets held in a trust for the long-term benefit of your beneficiaries.
- Primary Challenge: Prudent investment and discretionary judgment. They often have to say “no” to beneficiaries requesting money, requiring a firm backbone.
- Texas Nuance: Trustees are held to a strict fiduciary standard under the Texas Trust Code, specifically regarding the duty of loyalty and the duty to account.
3. The Agent (Power of Attorney)
Unlike the executor or trustee who acts after you pass, the agent acts while you are alive but incapacitated.
- Primary Challenge: Crisis management. They must make immediate financial or medical decisions during stressful periods.
4. The Guardian of the Person vs. Guardian of the Estate
For parents of minor children, this distinction is vital.
- Guardian of the Person: Steps into the parental role (schooling, housing, emotional support).
- Guardian of the Estate: Manages the assets inherited by the child.
- Strategic Insight: These do not have to be the same person. You might appoint a loving sibling to raise your children (Guardian) but a financially savvy professional to manage their inheritance (Trustee/Guardian of the Estate).
What Texas Law Demands of Your Choice
Understanding why selection matters requires looking at what the law expects. In Texas, a fiduciary relationship is the highest relationship of trust and confidence known to law. It is not merely a title, it is a burden of liability.
The Duty of Care
Texas law states that an executor/administrator must take care of estate property as a “prudent person would take care of that person’s own property.”
This sounds simple, but it implies a legal liability. If your chosen executor is disorganized and allows insurance to lapse on your home, or fails to manage investments resulting in a loss, they can be sued by the beneficiaries.
The Duty to Account
Transparency is non-negotiable. Fiduciaries must maintain rigorous records. One of the most common causes of estate litigation in Texas is not theft, but simply the failure to keep accurate records, leading to suspicion among heirs. Your selection must be someone capable of detailed record-keeping.
Digital Fiduciary Duties
The landscape of assets has shifted. With the passing of the Texas Revised Uniform Fiduciary Access to Digital Assets Act (TRUFADAA) and recent updates like HB 1666 (2023) regarding digital asset custodians, your fiduciary must possess “digital affinity.”
They need the legal authority and technical know-how to access cryptocurrency, manage social media legacies, and handle digital banking credentials without violating terms of service or federal privacy laws.
A 4 Step Process for Evaluation
When Duffley Law advises clients on selection, we move beyond “who do you trust?” to a more rigorous vetting process. Use this framework to evaluate your candidates:
1. Financial Literacy over Financial Wealth
Your fiduciary does not need to be wealthy, but they must be financially literate. Can they balance a checkbook? Do they understand the basics of insurance and taxes? If a candidate struggles to manage their own finances, they are a high-risk choice for managing yours.
2. The “Thick Skin” Factor
Especially in blended families or estates with intricate dynamics, the fiduciary often becomes the target of misplaced grief and anger. The ideal candidate is impartial and capable of making unpopular decisions if they align with your instructions.
3. Geographic Availability
While digital tools help, being an executor or trustee often requires physical presence, signing documents at a bank in Houston, meeting with realtors, or appearing in a Texas probate court. A candidate living abroad or in a distant state may face logistical hurdles that slow down the administration process.
4. Organizational Capacity
The difference between a probate process that takes six months and one that takes two years is often the organization of the executor. We prioritize candidates who are responsive, detail-oriented, and respect deadlines.
Understanding the Difference Between Family vs. Professional
One of the most common evaluation points for our clients is whether to appoint a family member or hire a professional (such as a corporate trustee or a bank).
The Case for Family Members
- Pros: They generally serve without a fee, they know your family dynamics personally, and they have a moral commitment to your legacy.
- Cons: They may lack technical experience, are susceptible to emotional manipulation by other family members, and may be overwhelmed by the time commitment.
- Best For: Simple estates with cohesive family dynamics and straightforward assets.
The Case for Professional Fiduciaries
- Pros: They possess experience in tax and investment laws, offer continuity (a bank doesn’t get sick or die), and provide an emotional buffer between beneficiaries.
- Cons: They charge a fee (usually a percentage of assets) and can be bureaucratic.
- Best For: High-value estates, complex trusts, blended families where neutrality is required, or when no suitable family member is available.
Preventing Conflict Before It Starts
Research into Texas probate disputes reveals a startling trend: conflict often arises not from the distribution of assets, but from the behavior of the fiduciary.
To mitigate this risk, consider these advanced strategies:
1. The Co-Fiduciary Solution
You can appoint a family member and a professional to serve together. The family member provides the “heart” (understanding the beneficiaries’ needs), while the professional provides the “head” (confirming compliance and investment growth).
2. Detailed Letters of Intent
While your Will is a legal document, a Letter of Intent is a non-binding guide where you explain why you made certain decisions. Explaining your choice of fiduciary here can disarm potential resentment among siblings who were not chosen.
3. Successor Depth
Your primary choice may pass away, move, or simply refuse the job when the time comes. We recommend naming at least two successors to confirm continuity without court intervention.
Securing Your Legacy
Selecting a fiduciary is arguably the most critical “personnel decision” of your life. It requires balancing heart with logic, and affection with competence.
By choosing a fiduciary who understands their duties and possesses the resilience to execute them, you are protecting your family from the chaos of an unmanaged estate.
If you are evaluating your options and need guidance on structuring a plan that confirms continuity and peace of mind, we invite you to continue your research or reach out to us directly.