Breach of Fiduciary Duty

The personal representative, executor, administrator or trustee of an estate assumes a role as fiduciary with respect to the estate. This means that the representative cannot engage in actions that contradict or violate his or her duty. He or she must act in the best interests of the estate.

If the fiduciary is living in the decedent’s house or allows a family member to live there without compensating the estate and having a plan to vacate, this can be a violation of one’s duty.

When you have evidence or suspicions that a fiduciary is acting out of self-interest, or has a conflict of interest, you can take legal action to hold that person accountable for breach of fiduciary duty. When that fiduciary has not been forthcoming with information such as an accounting, you can bring an action seeking that information and their removal as the representative in charge of the estate. These are just a few examples, but there are many actions that may be in violation of a fiduciary’s duties.

At the Law Office of Bonnie Lawston, we aggressively protect the rights of estate beneficiaries in claims involving breach of fiduciary duty. We have fought for the rights of residents of Suffolk County and Nassau County for more than 20 years.

Removing a Fiduciary of an Estate or Trust

The executor, administrator or personal representative of an estate holds a position of trust and responsibility. Several of the duties imposed on a fiduciary are that she/he must administer the estate or trust solely in the best interest of the beneficiary. The fiduciary has the duty of full disclosure of material facts when dealing with his or her own account, along with the duty to keep and render clear and accurate records; and to take reasonable steps to take, keep control of and preserve the asset. Fiduciaries are not allowed to use the assets for his or her personal gain or to benefit personally from same.

Improper Fiduciary Behavior

The fiduciary can retain the services of professionals for advice. However, the fiduciary is not allowed to  do the following:

These are just some of many examples of improper behavior that may amount to a breach of duty.

Proof Required to Remove a Fiduciary

To remove a fiduciary, one must prove to the court:

Some of the remedies include compensation, surcharging the fiduciary, removal of the fiduciary, removing the specific property, and reducing the compensation of the fiduciary.

A Fiduciary’s Role with Respect to the Estate and Heirs

He or she must not engage in self-interest or conflicts of interest, but must always act in the best interests of the estate. If you believe the executor, administrator or personal representative has violated his or her duties as a fiduciary, you can take legal action to have that person removed and replaced with another fiduciary. Additionally, if you believe that a potential executor will cause a problem, you can seek to prevent his or her appointment.