pjc-family-2024-lib

PJC 232.1

B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

(Tex. App.—Eastland 1958, writ ref’d n.r.e.). A personal representative also owes the common-law duty of loyalty. Humane Society , 531 S.W.2d 574, 579–80; Evans v. First National Bank of Bellville , 946 S.W.2d 367, 379 (Tex. App.—Houston [14th Dist.] 1997, writ denied). Testator’s modification or elimination of duties or exculpation for breach. Some wills contain language purporting to modify or eliminate the duties of the per sonal representative or exculpate the representative for breach of certain duties. How ever, the Committee has found no general statutory authority or case law permitting or prohibiting such modification, elimination, or exculpation. But see Tex. Est. Code §356.652, which provides that a personal representative of an estate may purchase estate property if the representative was appointed in a will that has been admitted to probate and that expressly authorizes the sale. The terms of the will also control as to matters covered by Tex. Est. Code §§ 124.051–.052 (satisfaction of certain pecuniary gifts), Tex. Est. Code ch. 310 (allocation of estate income and expenses), and Tex. Prop. Code § 116.004 (regarding provisions of the Uniform Principal and Income Act applicable to personal representatives). Describing duties. If a statute supplies the scope of the duty, the statutory lan guage should be used. For example, if the personal representative is accused of violat ing Tex. Est. Code § 351.101, the instruction should be worded as follows: A personal representative has the duty to take care of estate prop erty as a prudent person would take care of that person’s own prop erty. Broad-form submission. Tex. R. Civ. P. 277 mandates broad-form submission whenever feasible. If there is no dispute about the duties imposed on the personal rep resentative, no issue about the sufficiency of the evidence for any of the duties, and no difference in the damages arising from the breach of each duty, this question may be submitted in broad form with the duties listed in an instruction. Otherwise, the ques tion should be submitted as shown above. Burden of proof. The plaintiff bears the burden of proof in cases involving breach of duty by a personal representative other than those involving self-dealing transactions. For self-dealing transactions, see PJC 232.2.

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