Personal Representatives Have Duties, Discretionary Powers and Authority to do their job that must be balanced with Fiduciary Duties.
Even where the smallest estates are concerned, the role of a personal representative is not an easy one. He or she faces court supervision as well as the scrutiny of heirs and other family members — some of whom may be seeking the first opportunity to cry foul and call into question the representative's actions.
If you are the representative to a loved one's estate, it is important to always keep in mind your legal obligations.
You may well need an experienced attorney to protect you from or help you with:
- Protecting yourself from personal liability
- Creditor claims against you personally
- Breach of fiduciary duty claims
- Adverse claims from beneficiaries
- Conflicts of interest
- Avoiding self-dealing
- Second opinions
- Collecting your fee
It is essential that you be aware of your rights and your options should you become involved in a legal dispute such as a formal Will Contest, a claim of breach of fiduciary duty, we can help you minimize the possibility of disagreement whenever possible and represent your interests in estate litigation whenever necessary.
FIDUCIARY DUTY IN ESTATE, PROBATE AND TRUSTS
When a person has passed away, his or her property usually passes to loved ones by means of a will or trust or by intestacy. However, the process does not happen automatically. Someone must be in charge of making sure that things go smoothly. Most people appoint their children or other trusted individuals to the role. Others appoint institutions or neutral third parties. These representatives are "executors, administrators, or trustees."
Representatives have legal duties of confidence or trust — fiduciary duties — to act in accordance with the deceased person's wishes and State and Federal laws. While most estate representatives do so, that does not always happen. Representatives sometimes misbehave. On the other hand, they may face false allegations of breach of fiduciary duty.
WHAT IS A FIDUCIARY DUTY?
As more than one court has said, Trustees or other representatives owe fiduciary duties to a trust's or estate's beneficiaries and is obligated to carry out that duty according to the terms of the will or trust and to act with the highest degrees of fidelity and utmost good faith. The fiduciary also must manage the trust assets capably and address any issues that arise. Although not an exclusive list, the three traditional duties of a fiduciary are care, impartiality, and loyalty.
- Duty of care: This duty is considered to be the most basic duty. It requires a fiduciary to carefully manage trust or estate assets in accordance with the law and estate documents.
- Duty of impartiality: This duty requires a fiduciary to treat all beneficiaries equally, not favoring one over another.
- Duty of loyalty: This duty requires a fiduciary to act solely in the interest of the beneficiaries and not in the interest of the fiduciary.
Involved In An Estate Dispute? Learn How Our Firm Can Help You.
You have specific rights and prerogatives as a personal representative. These include:
- The right to proceed in the administration of estate matters, including distribution of estate assets, without prior court approval (except when given specific instructions by the court on a particular course of action)
- The right to an initial opening of a decedent's safe deposit box (with either an employee of the financial institution or your attorney)
- The right to seize any estate property with the exception of a protected homestead
- The right to sell real property of an intestate estate
- The option to resign as a personal representative (except when doing so would place the estate in jeopardy or cause it financial hardship)
You can benefit greatly from having a qualified lawyer represent you throughout the duration of the probate administration process. If you have been named by the court as a personal representative — and especially if an heir or other family member of the decedent is bringing a legal action to challenge your duties — we encourage you to speak with one of our attorneys.