Photo of David B. West

For more than 30 years, David West has been a trusted advisor to financial institutions, fiduciaries, business entities, property owners, manufacturers and nonprofits in handling legal disputes involving financial transactions, trusts and estates, fiduciary liability, contracts, business torts, real estate, and insurance.  He works with clients to develop business strategies for business disputes. When resolution between the parties is not an option, he vigorously represents clients in courts, using his experience in approximately 50 jury and non-jury trials and arbitrations.  David is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization.

You are the local banker. An elderly husband and wife have been long-standing customers of your bank. They have a modest estate and have set up a living trust so they can avoid the costs of probate. If they both sign as co-trustees, can they add their daughter, who lives in another state, as a co-signer to the living trust account?

Another customer was named as the trustee for his parents’ irrevocable trust. He has a full-time job, but his wife has offered to help with the administrative tasks. Can he add his wife as a convenience signer to the trust account?  
Continue Reading It’s the Trustee’s Burden: Can It Be Delegated?

Executors have a duty to gather all of the assets of the decedent’s estate and prepare an inventory of the assets and debts. In days of old, this meant obtaining paper files that had been in the possession of the deceased. The digital world changed all that. Digital content is generally held, not by the owner of the information, but by a third-party custodian. The custodian of digital assets has an obligation to protect against disclosure of data to unauthorized users. Can an executor really be considered an unauthorized user?

A prior version of a model act, the Uniform Fiduciary Access to Digital Assets Act, gave the fiduciary the same rights over digital assets that she had over tangible assets. That act was met with resistance by custodians of electronic records, each with its own terms-of-service agreements in place with their customers which included provisions regarding who could access digital assets. And custodians were concerned about the costs of responding to multiple requests for digital assets.  
Continue Reading Accessing and Protecting Digital Assets: Fiduciary Duties in a Digital World

There has been a growing trend among individuals and even estate planners to avoid having to go to the probate court. Even for those people who need wills, a large percentage of their assets will be transferred pursuant to beneficiary designations in account agreements at banks and credit unions, in IRA’s and other qualified retirement plans, and through life insurance policies. Add a trust, and an even wider range of assets can be transferred outside the probate courts. What this non-probate disposition of assets means, of course, is that financial institutions are called upon to help a customer determine what type of account to use and, after death of the customer, review legal documents and carry out the transfer instructions.

In addition, more people are using simplified probate tools to avoid a formal probate. In Texas, small estates affidavit can be used when a person dies without a will and has $75,000 or less in personal assets, not including the homestead. If there is a will and there are no unpaid debts or a need for administration, the will can be admitted to probate under a unique Texas proceeding known as a “muniment of title.” Under these procedures, no representative of the estate is appointed. Banks may be presented with a court certified copy of an affidavit for small estates or an order admitting a will to probate as a muniment of title. The financial institution may be called upon to review the documents and pay the funds in an account. These procedures are currently authorized by statute, but may become more widely used. A task force formed by the Supreme Court of Texas is considering promulgating forms for use by non-lawyers to make it easier for them to take advantage of these simplified procedures.
Continue Reading Avoid Probate Court: Head to Your Bank Instead

Every other year, the Texas Legislature convenes for roughly six months in Austin. Given the tight timeframe and biennial nature, sessions of the Texas Legislature tend to be “fast and furious” (and also full of drama). There were a total of 6,631 bills filed in the 2017 Texas Legislative Session. The Texas House filed 4,333 bills, of which 700 passed. The Texas Senate filed 2,298, of which 511 passed. Texas Governor Abbott vetoed 50 bills prior to the June 18, 2017, veto deadline. Below are summaries and effective dates of the major new laws that affect financial institutions operating in Texas.
Continue Reading 2017 Texas Legislative Recap of New Laws Affecting Financial Institutions Operating in Texas