A Texas Guardian of the Estate and the Ward's Empty House: Condition Reports, Hypothetical Income, and the Annual Account

Guardianship of the estate is drafted differently from administration of a decedent's estate, and the difference catches people who work in both. There is no instruction to keep the ward's buildings in good repair. What there is instead is an annual sworn account that must describe the condition of the property, and a rule that measures the guardian against the income prudent management would have produced. Together those do more work than a repair clause would.

The Standard, Without the Buildings Clause

Section 1151.151 is headed DUTY OF CARE, the same heading the probate provision carries. Subsection (a) reads: "The guardian of the estate shall take care of and manage the estate as a prudent person would manage the person's own property, except as otherwise provided by this title."

Compare Section 351.101, which governs an executor or administrator of a decedent's estate. That section pairs the prudent-person standard with an express obligation — if any buildings belong to the estate, the representative shall keep those buildings in good repair. The guardianship section has no equivalent sentence. A guardian reasoning only from the text of 1151.151(a) could conclude the position is looser than it is. Subsection (b) is why that conclusion is wrong.

Accounting for Income That Was Never Received

Section 1151.151(b): "The guardian of the estate shall account for all rents, profits, and revenues that the estate would have produced by prudent management as required by Subsection (a)."

Read that twice. The guardian accounts not merely for what the estate produced but for what it would have produced under prudent management. A rentable house standing empty for three years, or a house that became unrentable because nobody attended to it, raises a question measured against a counterfactual: what would a prudent owner have earned from this asset?

That framing changes what an empty property means in a guardianship. In a decedent's estate the building is usually on its way to sale or distribution and the period is finite. A guardianship can run for the rest of a ward's life. An asset producing nothing for years, where prudent management would have produced something, is a running exposure rather than a holding cost — and it is the guardian's own account that has to address it.

The Annual Account Asks About Condition

The initial annual account is due not later than the 60th day after the first anniversary of the date the guardian qualifies, unless the court extends that period, and Section 1163.002 requires an annual account thereafter until the estate is closed. What the account must contain is set out at Section 1163.001(b), and the fourth item is the one that matters for real property. The account must provide:

• "a complete, accurate, and detailed description of" the property being administered
• "the condition of the property and the use being made of the property"
• "if rented, the terms on which and the price for which the property was rented"

The condition of the property is a required annual disclosure, made under oath, filed with the county clerk and considered by the court. A guardian who has not visited the ward's house in a year is being asked to state its condition anyway. A guardian whose house has deteriorated is being asked to write that down, alongside the subsection (b) question of what prudent management would have produced from it.

And Every Expense Needs a Voucher

Section 1163.003(a)(1) requires the guardian to attach to each annual account "a voucher, including a receipt, invoice, or proof of payment, for each item of credit claimed in the account or, to support the item in the absence of the voucher, other evidence satisfactory to the court." The section goes on to require depository letters and statements, and proof of the existence and possession of securities and other assets.

Each item of credit claimed. Money spent on the ward's property is only credited if it is evidenced, and the fallback — other evidence satisfactory to the court — puts the burden on the guardian to satisfy a judge rather than on the court to disprove a figure. For recurring property work across a guardianship that may run for years, that is a filing discipline as much as a maintenance one.

What Can Be Done Without an Order, and What Cannot

Section 1151.103(a) lists what a guardian of the estate may do without application to or order of the court. Three items bear on real property: insure the estate against liability in appropriate cases; insure estate property against fire, theft, and other hazards; and pay taxes, court costs, and bond premiums. Subsection (b) adds that a guardian who doubts the propriety of exercising any of those powers may apply for an order.

Repairs do not appear on that list, and they do not appear on the Section 1151.102(c) list of actions requiring a court order either. They fall instead under the general entitlement in Section 1151.101(a)(1) to possess and manage all property belonging to the ward, exercised to the prudent-person standard. What Section 1151.102(c)(6) does require an order for is abandoning worthless or burdensome property and its administration — so a guardian cannot resolve a costly building by walking away from it.

One Provision Not to Misread

Section 1151.105, ORDINARY DILIGENCE REQUIRED, contains the words that tempt a misreading: a guardian who wilfully neglects to use ordinary diligence is liable, with the sureties on the guardian's bond, on the suit of any person interested in the estate. But subsection (a) confines the duty to collecting claims and debts due the ward and recovering possession of property to which the ward has claim or title, and the liability in subsection (b) is measured by the amount of those claims or the value of the property lost by the neglect. It is a collection provision. The same trap exists on the decedents' side at Section 351.151, and it is worth avoiding in both places.

What This Means in Practice

• Establish the condition of every real property asset early — the first account will ask for it within roughly fourteen months of qualification
• Visit on a cycle and record it, because the condition disclosure is annual and recollection does not survive a year
• Keep the property insurable and insured; insurance is expressly exercisable without an order
• Treat a habitable but empty house as a question to be answered rather than a neutral fact, given Section 1151.151(b)
• File a voucher for every expense claimed, because Section 1163.003 credits only what is evidenced
• Where the property genuinely cannot be carried, go to the court under Section 1151.102 rather than letting it lapse

For the equivalent duties on a decedent's estate, which are drafted quite differently, see an executor's duty to maintain estate property in Texas. For the same question in the other states covered, see a Louisiana curator and the interdict's property, an Alabama conservator, an Oklahoma guardian of the property, an Ohio guardian of the estate, a Pennsylvania guardian of the estate and an Arkansas guardian of the estate.