Probate is a time for the final legal steps to be taken in order to ensure that heirs receive the correct and appropriate distributions. But the person who has the most responsibility during this time — the executor — must fulfill their fiduciary role in order for this to happen. What are the primary components of that fiduciary duty? And what are some signs of failure to uphold it? Here's what you need to know.
The Duty of Care
A fiduciary is a person or persons who are responsible to act in the best interests of the beneficiary rather than their own interests. This starts with the duty to provide competent services to the estate. The executor may need to learn new tasks, consult with professionals, and research matters.
Failure to fulfill the duty of care can include not meeting court deadlines, not keeping records of accounting transactions, or not communicating with heirs and interested parties. While heirs shouldn't expect the executor to be perfect, they should take reasonable steps to perform all required duties correctly.
The Duty of Impartiality
Executors have a special challenge as fiduciaries: to be impartial. Because the executor's duty is to all the beneficiaries of the estate, they must not favor any heirs to the detriment of others.
An adult child named as executor, for example, cannot give the best pieces of the estate's jewelry to the sibling they love the most. They also cannot ignore the rights of step-siblings if the will stipulates fair division of assets. And certainly, the executor cannot grant themselves special deals such as buying estate property at a significant discount.
The Duty of Loyalty
Finally, how does loyalty fit into the executor's fiduciary responsibility? The executor first has to put the interests of the beneficiaries above that of any others — including themselves. They must work to protect the assets that heirs will receive, perform maintenance and repairs and make good investment choices. But they must also be loyal to the deceased estate owner by doing their best to fulfill their wishes.
Where to Learn More
Has the executor of an estate to which you have an interest shown signs that they aren't fulfilling one or more of these duties? If so, start by learning more about the fiduciary responsibilities and the rights of estate beneficiaries. You may need to take legal action to protect yourself and your fellow heirs. Contact a probate law attorney in your state to get answers to your questions.
