Failure to Execute Fiduciary Responsibilities as an Executor of a Will

By Larissa Bodniowycz, J.D.

Failure to Execute Fiduciary Responsibilities as an Executor of a Will

By Larissa Bodniowycz, J.D.

The executor of a will is the person responsible for wrapping up the affairs of a deceased person after their death. They hold a great deal of power, and with that comes fiduciary responsibilities. There are civil and criminal penalties for executors who fail to execute these responsibilities.

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Executor's Fiduciary Duties

The executor of a will has a fiduciary relationship to the beneficiaries under the will. This means that they hold a special position of trust. When acting in the scope of their role, an the best interests of the beneficiaries must be acted for, not themselves. The fiduciary responsibilities roughly fit into three main categories: duty of care, duty of loyalty, and duty of impartiality.

The duty of care requires the estate to be administered competently. If the executor does not personally have the knowledge and skills to administer the estate by themselves, the duty requires them to get help from appropriate experts. For example, probate attorneys are sometimes hired to help them with the probate process and ensure they follow the laws.

The duty of loyalty requires the executor to be loyal to the beneficiaries and place their interests before their own interests. For example, money cannot be taken from the estate and used to make personal investments. The related duty of impartiality prohibits favoring one beneficiary over another.

Civil Remedies for Breach of Fiduciary Duties

Executors that breach their fiduciary duties can be removed from their position and sued for the financial harm they caused through their misconduct.

When the beneficiaries or other persons with a legal interest in the administration of an estate believe the fiduciary duties have not been complied with, they can submit a petition to the probate court requesting their removal of the executor. The petition must include the reasons for the removal request, and then the final decision is up to the probate judge.

The failure to comply with fiduciary duties can also be the basis of a civil lawsuit for money damages. Beneficiaries or others such as creditors who have a legal interest in the estate and were harmed by the executor's conduct can file this type of suit. The purpose of this type of suit is to recover the financial losses the estate suffered because of the misconduct.

Depending on the state where the misconduct occurred and the nature of it, there are different types of civil claims the beneficiaries or creditors can bring against the executor in addition to breach of fiduciary duty.

Criminal Charges for Breach of Fiduciary Duties

Usually, when an executor does not fulfill their fiduciary duty, they also violate the law, which means they can also be charged with one or more crimes. The most common criminal charges are theft, fraud, embezzlement, and the like. Whether the crime is a misdemeanor or felony usually depends on the amount of money involved.

The beneficiaries can bring the executor's misconduct to the attention of the local prosecutor, but they cannot bring criminal charges themselves. The prosecutor in the jurisdiction where the crime was committed makes the decision to pursue criminal charges.

With the risks involved, being named executor of an estate can be an intimidating experience. If you are placed in this position, be sure you understand what you're signing yourself up for so that you're prepared for all of the responsibilities this role requires. Conversely, if there's an executor of a family member's estate whom you feel may be breaching their fiduciary duties, don't hesitate to discuss the situation with an attorney.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.