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Fiduciary Duty and What it Means

Fiduciary duty may seem like a dry legal concept that has very little to do with everyday life, but in fact it acts on most people on a daily basis. Fiduciary duty is defined as the responsibility of one party who is placed in a position of trust to act on behalf of another party’s best interests. Examples of instances when fiduciary duty is relevant include transactions between a doctor and a patient, a bank and a depositor, and a priest and a confessor. In each of these relationships, one party has complete confidence that the other party will not profit from their association to his or her detriment.

Of course, fiduciary duty is not a phrase that is commonly used. What would be more familiar to a lay person would be doctor-patient confidentiality and sanctity of the confessional. When it comes to estate planning and probate, however, a fiduciary plays a crucial role. The fiduciary is expected to carry out the wishes and directions of the principal as stated in a last will and testament, trusts, or other legal document even if it conflicts with the fiduciary’s beliefs, opinions, or benefit. Examples of fiduciaries in estate planning would be executors, banking institutions, asset managers, and probate lawyers.

For example, if a millionaire in Houston leaves a will dividing the estate equally between his wife and his daughter, his executor would need to determine which goes to who while the Houston lawyer would ensure that the estate goes through probate court as speedily as possible. It would be a break of fiduciary duty for the executor to under-appraise an asset and then acquire it from the estate. In the case of the probate lawyer, it would be a breach to delay the probate process to motivate one or more heirs to “grease the wheels” to make the process go faster.

Fiduciary duty is considered one which is brought to the highest legal standard, and it is easy to breach it unknowingly or unintentionally. If you suspect a breach of fiduciary duty in estate planning or probate in yourself or others, consult with a lawyer experienced in such matters.

Factors Affecting Child Custody

Child custody is hands-down the most emotionally-charged issue in a contentious divorce, and that is true in Texas as anywhere else in the US. Most state laws would encourage parents to share custody (or conservatorship in Texas) of their children based on the premise that it would be in their best interest to have significant contact with both parents. The Woodlands child custody lawyers can explain each parent’s rights when it comes to child custody so that an equitable agreement can be forged. However, when the parents can agree on nothing, they are unlikely to come up with a parenting agreement to present to the court. The courts will then have to decide for them.

Winning a child custody case requires extensive preparation, and it goes beyond financial or emotional capacity. In most cases, very young children are awarded custody to the mother even now because there are roles that a mother typically assumes, although this is no longer automatic. A father who wants to take over these roles will have to prove that he has the requisite qualities to do so, and that can be tricky, especially if the father has not taken on such roles i.e. homemaker prior to the divorce.

There is also the question of time. Most spouses work to make ends meet, which means that both parents may be out of the house most of the time. Sole physical conservatorship may be awarded to the parent who has a more flexible or regular schedule, while the other parent may be required to pay child support. This does not mean that one parent is more capable than the other, though.

Geography may also play a role in the court’s decision to award conservatorship. A parent who plans to relocate to another city or state may be at a disadvantage when it comes to winning conservatorship, as children may suffer from having their whole lives disrupted because of a divorce. Being in familiar surroundings among people they know may be beneficial for them to provide stability at a time when everything they know is changing.

If you are considering divorce but worried about your children, you should consult with an experienced divorce lawyer in your area to find out what you could be facing. If child custody is apt to become a problem, your lawyer will be able to advise you about how best to proceed.

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