Estate Planning Attorney
When someone dies with a will, the named executor is responsible for overseeing the estate administration process. If the executor fails to adhere to their duties and obligations, it could be considered a breach. In this case, you should talk with a probate lawyer who handles breaches of fiduciary duty.
What is Fiduciary Duty and What is Breach?
A fiduciary is a named person or in some cases, a professional entity who has been given the responsibility of maintaining and managing the estate of another party. For instance, an executor of a will has a duty to act in the best interest of the estate and it’s heirs. Whereas, a trustee has a duty to act in the best interest of a trust. Both parties, the executor and the trustee, has a fiduciary duty to act in the best interest of the estate as a whole. Other people who may have a fiduciary duty include:
- Personal representatives
- Agents under power of attorney
Elements of a Breach of Fiduciary Duty
A breach of fiduciary duty can happen for a broad range of reasons. In general you should always have a lawyer helping you with your case. In order to successfully execute a claim, your lawyer must be able to prove:
- A fiduciary relationship existed;
- There was a breach of that relationship; and
- The breach caused financial damage that can be rectified.
Breach of Fiduciary Duty as the Executor of a Will or Estate
The named executor of a will has an obligation to manage the estate and bring it to a close, through the probate process, in a timely manner. The executor’s duties include gathering the assets, settling debts and taxes, and distributing any remaining assets according to the will.
If you are the beneficiary of a will and believe the executor is not adhering to their duties and has breached their fiduciary duty, you should retain a lawyer. A lawyer can ask the court to order the executor to provide a full account of what they have, and have not, done.
Known as a “Executor Formal Accounting” this is a complex process in which a lawyer will oversee. It should be done in a specific format and include detailed information on every single asset of the estate. Any expenses must also be justified. If a judge finds that the breach cause financial damage, the executor can be ordered to refund the estate from their own funds. A judge might also remove the executor from the estate administration.
As a lawyer, our firm has handled breach of fiduciary cases of all types, included when an executor of an estate has been involved in:
- Commingling of assets belonging to the estate
- Self dealing
- Losses created by the executor because of a wrongful act
If you are the beneficiary of a will, and believe the executor has committed a breach of fiduciary duty, you should consult a lawyer as soon as possible.
A probate attorney has experience in handling breach of fiduciary duty cases and other estate matters. To discuss the pros and cons of pursuing a case that involves a breach of fiduciary duty, call a lawyer today.