State law imposes certain fiduciary duties on executors and others during the probate process. A fiduciary is a person authorized to act on behalf of another and who must follow certain legal duties. Understanding these obligations can protect your rights, help you pick a qualified fiduciary, or follow your duties as the fiduciary.
At Kondori & Moorad, LLP, our experienced probate attorneys guard your assets and provide estate planning services. We can help you through the probate process and help your fiduciary comply with their legal obligations.
WHAT IS A FIDUCIARY?
A fiduciary is a person entrusted to act on another person’s behalf. In the probate context, a fiduciary is responsible for carrying out duties associated with the decedent’s estate plan. The fiduciary may be responsible for managing the allocation of assets, following the terms of a will, or even managing a person’s trust.
The most common fiduciary during the probate process is the executor or administrator of the estate. An executor is a person through estate planning documents to put them in charge, while an administrator is a fiduciary of an estate where the decedent passed away without a will. With that responsibility comes several fiduciary duties and obligations. It is crucial that a person with fiduciary duties understand and follow them to comply with state law.
FIDUCIARY DUTIES DURING THE PROBATE PROCESS
There are several key fiduciary duties related to the probate process. Some of these duties are based in state common law and evolved over the course of time. Many others, such as Virginia Code § 64.2-1036, arise from state statutes. Every state requires an executor or administrator to follow fiduciary duties, although the specific requirements often vary by state.
Common fiduciary duties include:
- Duty of Loyalty: This duty requires fiduciaries to put the interests of the estate above their own. It forbids self-serving actions at the expense of the estate. Executors and administrators must work for the benefit of the beneficiaries and not favor their own interests.
- Duty of Care: Every fiduciary has a duty of care in the probate process. They must act in good faith and make reasonably prudent decisions. For example, an executor should comply with all legal requirements, notice requirements, and provide an accurate accounting of the estate.
- Duty of Full Disclosure: A fiduciary must make all necessary disclosures. These disclosures often include notifying beneficiaries of their rights under the probate process or that they are entitled to potential disbursements. It might also mean disclosure of the decedent’s passing to potential creditors.
- Duty to Preserve Assets: An executor must preserve assets as well as possible to retain their potential value. This might include protecting physical assets or properly maintaining investments during the probate process.
A fiduciary has these and potentially other fiduciary duties they must follow. An experienced probate attorney can help a fiduciary comply with these obligations so they do not have to face the complicated probate process alone.
BREACH OF FIDUCIARY DUTIES
In some cases, a fiduciary fails to live up to their obligations. Some may be accidental, others negligent. Some might intentionally violate these duties for their own self-interest.
A fiduciary who breaches their duties could be monetarily liable to the estate for violating their obligations. Some serious violations could even be criminal in nature. A probate and estate planning attorney can help determine if a violation occurred in these situations.
SPEAK WITH AN EXPERIENCED PROBATE ATTORNEY TODAY
At the law firm of Kondori & Moorad, LLP, our dedicated probate lawyers can protect your estate and help enforce fiduciary duties. We help clients plan their estate and handle the probate process to best protect your assets. Contact us today to speak with our team.