This Week in Probate and Guardianship Appeals

Conte v. Louis M. Ditta, Guardian of the Estate of Doris L. Conte, First Court of Appeals Houston

This week’s entry comes to us from the 1st District Court of Appeals in Houston. Louis Ditta, acting in his capacity as the guardian of the estate of Doris L. Conte, an incapacitated person, filed suit seeking the removal of appellant, Susan C. Conte, as trustee of the Conte Family Trust. After a bench trial, the probate court ruled in Ditta’s favor and issued two orders. The first order removed Susan as trustee, and the second order modified the terms of the Conte Family Trust and appointed a successor trustee. Susan Conte appealed the trial court’s ruling removing her as trustee and appointing a successor trustee.


In 1987, Joseph and Doris Conte created the Joseph P. Conte Family Trust, an inter vivos trust that became irrevocable on the earlier of Joseph or Doris’s death. The Trust agreement named Joseph the original trustee. Upon his death in 1993, per the terms of the trust, Doris began serving as co-trustee along with her two children, Susan and Joseph, Jr.

While things started out well, eventually it came to light that Joseph, Jr. was not administering the trust properly, and Susan began litigation to remove him as co-trustee. During the course of this litigation Doris was declared to be incapacitated and Louis Ditta was appointed as her guardian.

In 1998, Ditta sought the appointment of a receiver to take over the Trust in light of the continuing discord between Joseph, Jr. and Susan. Instead of appointing a receiver, the probate court entered an agreed order appointing a temporary successor trustee. The successor trustee filed an accounting and it revealed that both Susan and Joseph, Jr. had become significantly indebted to the Trust by using Trust assets for personal expenses. Ditta then sought the removal of both Susan and Joseph, Jr. as Trustees.

Following a bench trial, the probate court removed Susan as trustee, modified the terms of the trust regarding trustee succession, and appointed Frost Bank as successor trustee. The modification was in light of an agreement by Susan and Joseph, Jr. to reappoint Susan as trustee if she were removed by the court in the removal proceeding initiated by Ditta. This appeal followed.

Susan appealed stating that there was no evidence upon which to base her removal. Unfortunately for Susan, there was plenty of evidence of her being indebted to the Trust, and as such, removal was deemed to be within the discretion of the trial court.

However, in her second point, Susan argued that the trial court erred in appointing the successor trustee. Susan stated that the Court could not deviate from the terms of the trust when it came to appointing a successor trustee. The Court of Appeals agreed.

The Court of Appeals stated that the Texas Trust Code requires that on the removal of a sole trustee, a successor trustee must be appointed by the court in accordance with the terms of the trust. In this case, the trust provided that if neither Joseph Conte, Sr. nor Doris Conte appointed a successor in the first sixty days after the position of trustee was vacated, the majority of adult beneficiaries had a thirty-day window to appoint a successor. The Court noted that this showed a clear intent by the grantor to leave decisions regarding the management of the trust to his wife and children. While Susan was disqualified from being reappointed, her ability to pick a successor (other than herself) should not be modified. The Court remanded the case to the trial court to rule accordingly.

What does all of this mean for you? First of all, if you have a trust, make sure it says exactly what you want it to say. Secondly, if you are a beneficiary of a trust and have concerns regarding the Trustee, call us today and schedule an appointment to discuss your matter. Even where a Judge has ruled against you there may still be options available, but the timelines are short so do not put off calling an attorney that is qualified in probate matters.