The goal of all estate is that everything transitions without a hitch, that no opposition arises.
Unfortunately, that’s not always the case. There are disputes — for love and money — and the burden of those complications falls on the executor of the estate and the estate attorney. It varies case by case, but disputes aren’t always of the selfish variety. Sometimes the executor is at fault, which leads to breach of fiduciary duty charges. This is a charge for the failure to carry out the wishes of the deceased.
The executor of estate
Generally stated, the role of an executor is to fulfill the wishes of the dying party. This means settling legal and economic affairs: that Social Security payments cease upon death, that any debts are paid off, and that leans or titles are transferred. It also includes distribution of property as detailed in a living will.
Breach of duty
“Fiduciary duty” is a wide-reaching phrase that crosses different legal fields, including prominence in business matters. For the purpose of this post, we’re focusing on breach of duty as it relates to the estate plan.
The most basic definition of a breach of fiduciary duty in this case is that, simply, the executor failed to carry out the assigned duties. Causes are fraud, misconduct or simply failure to act: from complex and manipulative to simple and lackadaisical.
Estate plans can vary by the individual so it’s difficult to sum up all possibilities, but a few common examples of breach are:
- Failure to file taxes on behalf of the deceased
- Failure to locate and distribute property
- Discernible bias in distribution of property
- Failure to pay off debts or creditors
- Unfair use of assets to pay debts
If someone violates the executor role, there is legal recourse, including removal from the position and holding the party liable for lost funds and property.
To be named executor is an honor, but it’s also a heavy burden that involves time, trust and dedication. Other key traits are thick skin for those accused of misdeeds and, also, trustworthiness. The purpose of an estate plan is to see your wishes carried through, to have someone act honorably on your behalf.
A breach of fiduciary duty, as it relates to estate planning, means the executor failed to live up to the agreement.