Breach of Fiduciary Duty

The Personal Representative and/or Trustee of an estate has a duty to settle and distribute the estate of the Testator/Trustor in accordance with the terms of the Will/Trust as expeditiously and efficiently as is consistent with the best interests of the estate. If a party breaches their duty to the estate, they may be liable to interested persons for damage or loss resulting from the breach of the duty.

Examples of a Breach

There are several scenarios under which a breach of fiduciary duty may occur. Such scenarios may include, but not be limited to:

  • The Personal Representative/Trustee has been using estate funds as their own personal piggy bank.
  • The Personal Representative/Trustee is not honoring the provisions of the Will/Trust and trying to control the Will/Trust.
  • The Personal Representative/Trustee is not distributing the funds timely.
  • The Personal Representative/Trustee is not providing the required information to the beneficiaries.
  • Estate property is affected by a conflict between the personal and fiduciary interests of the Personal Representative/Trustee.

Remedies for a Beneficiary

Once an attorney is retained, he or she will notify the Personal Representative/Trustee of their breaches and hopefully the Personal Representative/Trustee will remedy the problem(s). If not, the attorney will initiate legal action and have the Personal Representative/Trustee explain their actions to the judge. The Personal Representative/Trustee can be removed from their post, can be made to pay funds back into the estate and can be made to have their share reduced if they are also a beneficiary. Further, if a Personal Representative/Trustee has used the funds for their own benefit, they may be criminally liable for theft. The court does not care that the Personal Representative/Trustee happens to be the son, because the court will hold the Personal Representative/Trustee to a higher standard.

Remedies for a Personal Representative/Trustee

If you as a Personal Representative/Trustee are accused of breaching your fiduciary duty and are unable to personally remedy the problem(s), you should retain an attorney. The attorney can advise you if your actions are in violation of the law or if the actions are justified.

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